Pardoning Power & Judicial Review

 Recently the pardoning power of governor was put under judicial review in the case of Epuru Sudhakar & Anr. Vs Govt. of A.P. & Ors .Before discussing the factual situations of the case let us revert back to some of the old cases.

In Kuljeet Singh Vs Lt. Governor of Delhi it was held that the President’s Power

Under Article 72 will be examined on the facts & circumstances of each case the court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

But the major case in which the concept of judicial review of the President power on grounds of its merit was that of Kehar Singh Vs. Union of India. In this case SC held that 

"It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assist by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit"

In Epuru Sudhakar Case the immunity of the pardoning power of governor from judicial review came up. SC aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist, the SC bench of Justices S H Kapadia and Arijit Pasayat warned that the exercise of the power would be tested by the court against the maintenance of Rule of Law.

“Rule of Law is the basis for evaluation of all decisions (by the court)... That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent,” the bench warned. 

Justice Kapadia, while concurring with the main ruling delivered by Justice Pasayat, sought to remind “exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty... the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”

“An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are fraught with discrimination,” he said. Thus this judgment reiterated the settled position of law that exercise or non-exercise of the pardoning power by the President or Governor would not be immune from judicial review.

The biggest question which could be laid down against the conception of Judicial Review of the power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if president grants pardon on some moral & humanitarian ground whether in that case if judicial review is done then how come a judiciary would close its eyes from the previous judgments which it has given right from the lower courts against the pleader. It is more or less clear that it would revoke the pardon & would revert back to it’s final decision. As per my view the judiciary when given a chance to review a pardon should not go by the legal circumstances but it should deal with the moral values.

Questions are now arising on several clemency decisions given by various US Presidents. Amongst which most of them are given by Bill Clinton. Bill Clinton granted about 395 pardons during his presidency amongst which 140 were issued on his final day in his office. It could be clearly seen that pardon power could be misused. Recently a house judiciary Committee which was hearing into the decision to commute the sentence of former White House aide I.Lewis “Scooter” Libby has said that it would review all the previous pardon given by various presidents.

Thus when the President’s Absolute power to grant a pardon can be brought under judicial review then why can’t the power granted to Indian President be reviewed.

Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan said “Law cannot stand still; it must change with the changing social concepts and values. Law constantly be on the move adapting itself to the fast-changing society and not lag behind”.

Thus in my opinion it is the need of the hour that judiciary should prevail & pardoning power should be subjected to judicial review, if it is done so the judiciary would definitely come up with flying colors & would not let down the biggest democracy of the world.