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By Aastha Suman, 4th year, WB NUJS, Kolkata 



                                                               –Abraham Lincoln, 16th U.S President

Mercy is God’s grace, a gift to the mankind which gives all an equal chance to mend ways and to correct a deviant behaviour. This might be why every civilised state has had a provision to pardon offenders in their criminal justice system to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some functionary of the government, a country would be most imperfect and deficient in its political morality.

[i] This rationale is further enunciated by Justice Holmes of US Supreme Court where he points out that pardon as of today is not an act of grace but is a constitutional scheme which when granted is determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgement fixed.

[ii]The significance and need for clemency has been a source of debate from decades. Montesquieu believed in significance of clemency in the monarchical system. Beccaria advocated total abolition of this institution and keeping this in view this provision was dropped for few years in France during the revolution of 1789 while the English scholars Feilding, Eden and Colquhoun concentrated their attacks on the abuses evident in the exercising of the pardoning power. Immanuel Kant and Filangeiri were against the very existence of such a provision.The power of pardon could be thought of as an archaic survivor of a bygone era where there existed an omnipotent ruler who was vested with powers to bestow his benevolence once in a while totally based on his whims and fancies.

[iii] Even today the reflections of the past can be seen in the provisions of our constitution. The constitution vests in the president and the governors of various states with the power to grant reprieves and pardons through its articles 72 and 161 respectively in addition to the commutation of sentences which may be also appropriated by the government under the provisions of CrPC and IPC.The presidential power acts as a safety valve in exceptional cases where the legal system fails to deliver a morally or politically unacceptable result and hence secures public welfare.

[iv] Also, pardon has become virtually the only way that a sentence, once final, can be reconsidered and, in appropriate cases, reduced. A pardon case provides a unique birds-eye view of how the criminal justice system is being administered, revealing where particular laws or enforcement policies are overly harsh, and where prosecutorial discretion is being unwisely exercised. A criminal justice system may be harsh and inflexible in which pardon power is a major boon for offenders who could have their convictions reviewed, prison sentences reduced, and rights of citizenship restored.Finally, apart from its role in encouraging law reform, pardon can tell good news about the justice system, by recognizing and rewarding criminal justice success stories where the convict’s atonement and changed ways are rewarded by pardon. After the court-imposed sentence has been served, pardon plays an important role in offender re-entry and reintegration by relieving legal disabilities and certifying good character .Also, in a way the relevance of pardon seems vindicated when we look at the sheer size of the prison population and need to reduce such a strain. Furthermore, clemency is a useful tool for prison administrators to reward good conduct and accomplishments by prisoners.The power of pardon has sometimes been regarded as an unprincipled and unwelcome intrusion in the law’s enlightened process as it leads to an overlap between the functions of judiciary and executive. Also, the significance of this power is on a decline because penal codes and other laws are acting as support to the convicts and need for a mercy petition is becoming unnecessary. For instance, clemency for rehabilitation is unimportant as statutory or judicial provisions for the same have come up. Similarly, the courts consider mental incapacity or act in self-defence before giving a verdict. Also, there is individualisation of cases and there are provisions for numerous appeals in which presidential clemency or Governors pardon have a minimum role to play. Furthermore, it could be argued that the courts use capital punishment sparsely and in the rarest of rare case and so scope of an executive interference is limited.The legitimacy of the president’s use of power depends importantly on how accessible it is and if the poor and the illiterate are able to utilise it as much as the rich and the powerful. Unfortunately, in India the illiterate are either unaware of the pardon power or are incapable of even drafting a mercy petition. Such convicts with no political connections are unable to influence or mobilise clemency in their favour.From the time of inclusion of executive clemency in the constitution it has been subjected to various controversies mainly due to the vague language of articles 72 and 161 as well as its archaic origin. The question of extent of power of pardon of punishment, the question of who should be granted pardon and what procedure to be followed in granting pardon by the executive have been a matter of debate for decades. Furthermore, the granting of pardons, reprieves, and manifestations of the executive clemency power in general have been variously described as unilateral, notoriously non-reciprocal, virtually unassailable, absolute and perhaps the most imperial of presidential powers.

[v] The large political influence on the pardoning power has further marred it with controversies. This nature of the pardoning power has lead to various petitions asking for judicial review of the same. To start with, is there a conflict between judicial power to pass a punishment authorised by law and the pardoning power? Does the pardoning power of the executive undermine the judicial decisions? Only when we have answers to these questions will we be able to evaluate the role of judiciary in regulating the pardoning power which is the main point of discussion in the following research.


 Article 72 and 161 vest in the executive the humane and vast jurisdictiction to remit, repreive, respite, commute and pardon criminals on whom judicial sentences may have been imposed. The constitutional provisions implicitly allow for a two-tier process of seeking pardon, first from the state governor and then from the President at the center. It is clear from the constitution that like other powers of the president and the governor, the power to pardon is also to be exercised on the advice of council of ministers which means the president yet again acts out as a rubber stamp fulfilling a prerogative as under the constitution.

[vi]However, the power of pardon even if it is being wielded by the highest executive authority needs to be exercised in good faith, with intelligent and informed care and honesty for public welfare.[vii] Furthermore, the power to grant pardon is coupled with the duty to act fairly and reasonably. All public power, including constitution power, should never be exercised arbitrarily or malafide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of powers. The Supreme Court has expressed the need to make rules for the guidance in exercise of pardoning power while keeping a large residuary power to meet any special circumstances or sudden developments.

[viii] However, later the same court held that Article 72 has a wide ambit and is indicative enough that it coupled with previous case laws are sufficient and that no precise or clearly defined guidelines are required. Thus, the power of pardon remains unbridled with wide discretion provided to the executive. Moreover, from times immemorial the power of pardon has not so much been an act of grace as a tool of monetary and political aggrandizement. From the outset, the pardon was abused for personal gain. The systematic abuse of the pardoning power and the arbitrary and irrelevant reasons supporting issuance is nothing new to the system.

[ix] The Supreme Court observed in 1976 that a President gripped by communal frenzy and directing commutation on religious or community consideration alone, requires to be kept in check. As a remedy, it was thought essential to vest in the courts the power to review such decisions.The politicisation of clemency powers is inevitable. For instance, the case of Murugan, Santhan and Arivu (sentenced to death for their part in the conspiracy to kill former Prime Minister and leader of the Congress Party Rajiv Gandhi) as also Mohammed Afzal Guru (sentenced to death for conspiracy in the attack on the Indian Parliament). An instance of gross violation of the governor’s power to pardon was seen in Haryana which involved the murder of Jasbir Singh in which the prime accused Sat prakash and Sabir were convicted and sentenced to life imprisonment and five years rigorous imprisonment by the Supreme Court. But three months later, the governor seemed to have miraculously pardoned both the convicts. Similar, pardons were granted to prime accused of Krishnan Kumar murder case and Jay Prakash attempt to murder case. In the first case BJP activists Jain and Bhumla were convicted by a Supreme Court bench of Justices G.T.Nanavati and V.N.Khare. However, almost immediately the governor of Haryana pardoned both. Luckily, in these cases the court’s power of judicial review saved the day where the Punjab and Haryana High court observed that there seems to be a lack of application of mind on the part of governor which is evident from the haste to grant pardon. Satpal and Ajay Chautala (Member of parliament) were the prime accused in the latter case.Furthermore, the absence of transparency in the clemency process is a serious concern, especially since the executive may be subject to pressures extraneous to the case. It is often the case that reasons for accepting or rejecting a mercy petition is not given. In the case of Padfeild and Others v. Minister of Agriculture Fisheries and Food and others

[x]  it was stated that in case the executive gives no reasons for a decision the judiciary is at liberty to come to the conclusion that he had no good reason for reaching that concusion. The same was upheld in Muhammad Sharif v. Federation of Pakistan

[xi] and in Vamuzzo v. Union of India

[xii] which shows the importance of disclosing the basis for a decision on pardoning power.  The power of judicial review means that arbitrary executive actions can be corrected by an alert Supreme Court.

Another reason why the Supreme Court should intervene in the exercise of executive clemency is due to the delay in decision-making on mercy petitions by either the President or Governors. In both K.P. Mohammed v. State of Kerala

[xiii] and Sher Singh and Ors. v. State of Punjab

,[xiv]C.J Chandrachud led the Supreme Court benches in suggesting that the state accept a self-imposed rule and decide on mercy petitions within three months. In response to delays caused by the executive considering mercy petitions the Court commuted the sentences of the condemned prisoners in both Madhu Mehta v. Union of India and Ors

[xv]. and Daya Singh v. Union of India and ors

[xvi]as also in Shivaji Jaising Babar v. State of Maharashtra

 [xvii]It can be said that on an average, four to five years are taken for disposal of a mercy petition. Those who have been sentenced for the death penalty have to wait for an agonisingly long time- before the High Courts confirm such a sentence of the trial court, before the Supreme Court disposes off related Special Leave Petitions, and the President, Governor or the concerned governments grapple with the issues of pardon and commutation of the sentence. Such delays add immeasurably to the inhumanity of capital punishment. Although, in the year 1988 a constitutional bench of the Supreme Court ruled that an unduly long delay in execution of the sentence of death would entitle an approach to the Court, but that only delay after the conclusion of the judicial process would be relevant, and that the period could not be fixed This ruling effectively moved the focus of the question of delay away from the judicial process to that of the process of executive clemency. However, this issue remains unresolved till date with increasing number of delays in processing and passing of mercy petitions. For instance in the year 2006, there were 23 cases involving 44 condemned prisoners pending for disposal before the president of India. Out of which 2 cases are pending for less than a year, 8 cases for one to three years and 13 cases over three years. 22 petitions filed before the President of India have been processed in the Ministry of Home Affairs and submitted to the Hon`ble President of India for taking a decision on the petitions. One petition is being processed in the Ministry of Home Affairs. Some of the cases were pending before the president from 1998.


One of the earliest case of significance where a clemency petition was brought under judicial review was G. Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and Ors, the Court rejected the claim, observing that with respect to actions of the President, the Court “makes an almost extreme presumption in favour of bona fide exercise” and that the petitioners had shown no reason for the court to consider the rejection of their application “as motivated by malignity or degraded by abuse of power.” Even while rejecting the writ petition, the Court however sounded a note of caution and stated that the Court would intervene where there was “absolute, arbitrary, law-unto-themselves malafide execution of public power”.

These parameters for judicial review were reiterated again in Maru Ram v. Union of India and others where the Constitutional Bench further asserted that the Courts would intervene in cases where political vendetta or party favouritism was evident or where capricious and irrelevant criteria like religion, caste and race had affected the decision-making process. Such malafide and extraneous factors vitiate the exercise of pardon power and should be checked through judiciary.

Then, was the landmark case of Kehar Singh in which the challenge was to the president’s order declining clemency to one of the accused in the Indira Gandhi assassination case. The Supreme Court dismissed an appeal by special leave filed by Kehar Singh after the president declined to go into the merits of the case decided by the Supreme Court which was supposedly erroneous and also did not permit an oral presentation of cases before it. The court held that the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. (The doubt existed as Article 361 of the constitution states that the president is not answerable to any court in the exercise of his powers.)  The Court can never question or ask for reasons why a mercy petition was rejected. However, if the reasons are provided by the president in his order and these are held to be irrelevant, the court could interfere. The court has also admitted judicial review on some specific grounds –

  1. To determine the scope of Articles 72 and 161.
  2. The court can interfere where the president’s exercise of power is vitiated by self-denial on erroneous appreciation of the full amplitude of power conferred by Art 72, e.g., where the president rejected a mercy petition on the erroneous ground that he could not go behind the final decision of the highest court of the land or where the decision is irrelevant, discriminatory or malafide.
  3. In case of inordinate delay in processing the mercy petitions in case of death sentences, it could be substituted to life imprisonment.

The Supreme Court admitted a writ petition in Kuljeet Singh v. Lt. Governor, Delhi and anr. challenging the arbitrariness of the clemency powers of the President and expressed need for the president to be presented with relavant facts and made aware of the existing circumstances. In Swarn Singh vs. State of UP,

[xviii] the Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the State Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. The Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor’s previous rejection of his clemency petition in regard to the same case. Hence, the Supreme Court interdicted the order, acknowledging that though it had no power to touch the order passed by the Governor, if such power was applied arbitrarily, malafide and in absolute disregard of the finer cannons of constitutionalism, such an order cannot get the approval of law.

 Similarly, in the case of Satpal v. State of Haryana

[xix], it was held that the constitutional power given to the Governor under article 161 if found to be exercised without advise by Government or if the jurisdiction is transgressed or if it is established that the order was passed without application of mind or if the order is malafide or has been passed on some extraneous considerations like political loyalty, religion, caste etc, then the court has full right to interfere. ’ The Supreme Court quashed an order of the Governor pardoning a person convicted of murder on the ground that the Governor had not been advised properly with all the relevant materials. The Court spelt out specifically the considerations that need to be taken account of while exercising the power of pardon, namely, the period of sentence in fact undergone by the said convict as well as his conduct and behavior while he underwent the sentence. The Court held that not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational

Finally, in the recent case of Epuru Sudhakar and anr vs. Government of Andhra Pradesh the court laid clear grounds on which the pardoning power may be challenged. It was held that with clear separation of powers emphasised in the Constitution of India regarding pardons, the scope for judicial review of executive action is limited. Where constitutional powers of clemency are involved, the extent of judicial review is limited further to extreme cases. The Supreme Court referred to the large number of petitions challenging the grant of pardon or remission to prisoners, there are no cases in which the Supreme Court has quashed the decision of the President/Governor granting clemency.

The Court set aside a remission granted by the Governor of Andhra Pradesh on the ground that irrelevant and extraneous materials had entered into the decision making. The Report of the District Probation Officer which was one of the materials on which the decision was based, highlighted the fact that the prisoner was a ‘Good Congress Worker’ and that he had been defeated due to political conspiracy. Similarly the Report of the Superintendent of Police reached a conclusion diametrically opposite to the one it had reached before elections were conducted. Thus in these judgments concerning the Governor’s exercise of pardon, the Court seems to have widened the grounds for judicial review by enumerating specific grounds on which the grant of pardon can be considered arbitrary. It was also held that the non-consideration of relevant factors such as length of the sentence already undergone, the prisoner’s behaviour and involvement in other crimes and consideration of extraneous or irrelevant grounds such as political affiliation, religion, caste may call for judicial review.


 Each organ of the government has its own well defined separate powers and hence the legislature or the judiciary cannot interfere with the presidential power. The Executive and the Judiciary are known to have separate paths, then where is their stand in the framework of pardoning power? It is also interesting to note that there may be a conflict between judicial power to pass a sentence or make an order authorised by law and the power of pardon as exercised by the executive. However, it is the wide belief that there is no conflict between the jurisdictions. If pardon is granted before or during a trial and accepted, there is no conflict as jurisdiction of a court to try an accused as it is nothing more than its obligation to decide a matter formally brought before it for determination. And if the pardon is accepted, there is nothing for courts to determine, for pardon can be pleaded in bar to indictment; or after verdict in arrest of judgement, or after judgement in bar of execution and court in giving effect to a plea which gives effect to the law of the land.

In the case of Kehar Singh v. Union of India, it was held that the manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. It was held that it is open to the President under the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court and in doing so, the President does not amend, modify or supersede the judicial record. The President acts in a wholly different plane from that in which the court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it.

This ostensible incongruity is explained by Sutherland J. in United States v. Benz

 [xx]which distinguishes between judicial power and executive power over sentences. To render judgement is judicial while to carry out the judgement is executive. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgement, but does not alter it qua a judgement.

It is rather interesting that there have been cases when the judiciary in itself has suggested a recourse to the power of pardon through there judgements which is a clear indicative of the coexistence of judiciary and executive while exercising the power of pardon. Thus, in Raj Nath v. State of Assam,

[xxi] while two judges took opposing views on whether to accept the claims that the accused was a juvenile and commute the sentence, the third (and therefore decisive) judge agreed to reject the petition, arguing that the accused had the remaining remedy of executive clemency. Similarly, the majority Bench in Devender Pal Singh v. State, N.C.T. of Delhi and anr. (with Krishna Mochi)

 [xxii]also relied on this safety-net when upholding the death sentence after the three judges were completely divided on questions of guilt as also of sentence.

There have been numerous instances, including every case of death penalty for which a mercy petition has been submitted while there have been a large number where the Supreme Court has been asked to interfere with the final mercy order given by the executive. It seems to be a never ending cycle with executive being appealed for mercy after court ruling and then the court door being knocked the after executive decision in the matter. However, as is evident from the various judgements of the Supreme Court the judicial review of pardoning power is inevitable.


Executive clemency is like the unbridled wind which blows unhindered with least interference of the judiciary and with discretionary powers to the president and the governor. The executive which is mired with its political bias has been granted to make decisions over-riding the decisions of the apex-courts of the country. Does this lead to a decision made in public interest, one which is more humane? The answer definitely is in the affirmative.

Let the provision for pardons be a ray of hope to those subject to the positivist limitations of interpretation of the law by the judges. Lon Fuller, the creator of inner morality of law clearly indicates that executive is not bound by the shackles of the black letter law and may go beyond it to include the essence of morality in it. The president and the governors of various states have the power to grant pardons, reprieves, commutations and remissions of sentences as long as it is based on certain reasons, the power of judicial review shall only be limited to the cases where the decisions was passed without application of mind or if the order is malafide or has been passed on some extraneous considerations like political loyalty, religion, caste etc. This safety valve placed in the form of judicial review is a boon in keeping a check on arbitrary decisions of the executive but it also creates a never ending tedious cycle prolonging the process of law. 

It is imperative that a person be deprived of his life and liberty by due process of law or by laws which are just, fair and reasonable. Consequently, the presidential power should also be used in accordance with the due process of law. To become so certain changes are recommended. Firstly, it is required that in the spirit of democracy, it is important that transparency be maintained in taking decisions on the mercy petitions. The president and the governors or those who indirectly exercise these powers through advice need to have objective criteria to process the petitions and the rationale behind each decision should be made clear through a speaking order. Secondly, keeping in mind the tenets of Article 14 of our constitution, the provision should be exercised with equanimity towards one and all without distinctions on the basis of gender, age, caste, community, language or geography.

In the democracy the ultimate sovereignty lies with the people and through them vests with their representatives.  Hence exercise of such power by the political executive by advising head of the state to grant pardon is legitimate.  In India the processes have enough checks and balances but never the less more caution is needed to avoid political considerations and exigencies colouring the exercise of the powers of pardon as evident from the past experiences and cases.

A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts. Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the president needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism.

Furthermore there should be equity before law and equal opportunity to all. For this the poor and the illiterate should be provided assistance in drafting, and pursuing their mercy petitions. Lastly and most importantly, it should be made a matter of policy that those prisoners who seem to have atoned and reformed should be pardoned and suitably rehabilitated. This shall encourage the criminal offenders to turn their lives around and start afresh. The president should use his wisdom and discretion well in order to take a just decision based on objective criteria to grant pardons.

Above all by the time the above recommendations are put into action the judicial review of pardoning power remains inevitable even if in a limited way.

[i] American jurisprudence, 2d, 5 as cited in written submissions of Soli Sorabjee as Amicus Curie in the case of Epuru Sudhakar and anr vs. Government of Andhra Pradesh AIR 2006 SC 3385.

[ii] Biddle v. Perovich [71 L. Ed. 1161 at 1163]

[iii] Love.C.Margaret, Reinventing the president’s pardoning power at last visited on 18 May 2008

[iv] Seervai H.M., Constitutional Law of India, Vol. II, fourth edn., Universal Book Traders, New Delhi, India, 1999.

[v] Kuljeet Singh v. Lt. Governor, Delhi and anr (1982) 1 SCC 11

[vi] C.J Pathak in Kehar Singh vs. Union of India (1989 SCC (1) 204) remarked that the power of pardon rests on advice of the executive which is subject to provisions of article 74(1) of the constitution.

[vii] G. Krishna Goud vs. State of Andhra Pradesh (1976) 2 SCR 73

[viii] Maru Ram v. Union of India and others [(1981) 1 SCC 107]

[ix] Ex Parte Philip Grossman (69 L. Ed. 527) approved and adopted by apex court in Kuljeet Singh v. Lt Governor of Delhi.

[x] (1968) 1 All E.R 694

[xi] PLD 1988 Lah 725

[xii] (1988) Gauhati Law Journal 468

[xiii] 1984 Supp SCC 684)

[xiv] (AIR 1983 SC 465)

[xv] (AIR 1989 SC 2299)

[xvi] (AIR 1991 SC 1548)

[xvii] AIR 1991 SC 2147

[xviii] (1998) 4 SCC 75

[xix] 2000 (5) SCC 170

[xx] [ 75 L. Ed. 354]

[xxi] AIR 2001 SC 2231

[xxii] (AIR 2003 SC 886)

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Sachin Bhakar
Sachin Bhakar
2 years 8 months ago

Detailed Research on the matter….