By Sandhya Shyamsundar, WBNUJS, Kolkata.

I have always found that mercy bears richer fruits than strict justice.” – Abraham Lincoln

Since time immemorial, the principles of Justice and Mercy have seemed incompatible. After all, the notion of justice involves dispensing of deserved punishment befitting the crime whereas Mercy is all about pardon and compassion for the offender.[1] The significance and need for clemency is paramount today, as it bestows an equal opportunity for all to correct their deviant behaviour.

This principle of absolution has been codified under Article 72 of the Indian Constitution and vests with the President to grant pardons, reprieves, respites and remissions of sentences of persons convicted of any offence extending to all cases where the sentence is by a Court Martial and one of death, in addition to the commutation of sentence. Inclusion of Executive Clemency in the Constitution is seen as both a safety valve due to its ability to secure public welfare when the legal system fails to deliver a morally acceptable verdict and, a unilateral and virtually impregnable power due to questions of the extent of granting presidential pardon, to whom should it be granted or what is the procedure for granting, etc being left unanswered.

The constant tussle between Judicial Review and Presidential Pardon has brought about a much needed debate on whether the former overrides the latter thereby making Article 72 redundant or whether the latter remains absolute with little or no effect on the former whatsoever. This is an attempt to try piecing together this constitutional puzzle by critically analysing and deciphering the judgement of Justice Arijit Pasayat in the case of Epuru Sudhakar and Anr v. Government of Andhra Pradesh and Ors.[2]

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The judgement demands no elaborate investigation into the facts of the case, only that it is an answer to a writ petition filed, alleging that the grant of remission of the sentence of a convicted congress activist by the then Governor of Andhra Pradesh Sushil Kumar Shinde was illegal since relevant materials were not placed before the Governor and, that the impugned order was passed without the application of the mind. The legal issue in question is relating to the extent of judicial review over the power of pardon.

Justice Pasayat first addresses the reasons as to the existence of executive clemency and notes that it is set up to prevent injustice to a person who has been convicted, acknowledging that the convict has seen the error of his ways and, that society will gain nothing by his further confinement and that he will conduct himself in the future as an upright, law-abiding citizen.[3] Moreover, it affords relief from undue harshness in the operation or enforcement of criminal justice on the ground that the public welfare is the legitimate object of every punishment.[4]

A further line of argumentation is that the administration of justice by courts is not necessarily always wise or certainly understanding of circumstances, which may properly alleviate guilt.[5] To afford a remedy, various governments and monarchies have considered it essential to vest in some other authority than the courts, the power to improve or avoid particular criminal judgements. In England, this power is in the form of a royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary on a variety of grounds mostly as a safeguard against judicial error – an act of grace. In the United States, however, the power of pardon is mostly seen as a constitutional scheme.[6] Coming to India, this power is a constitutional responsibility, one that has to be exercised with reasonable discretion.

Next, Justice Pasayat makes a distinction between judicial power whose function is to render justice and pass sentences of criminals and executive power whose function is to carry out the judgement. When the President exercises the power to pardon and scrutinises the evidence on the record of the criminal case and arrives at a different conclusion in regard of the guilt of, and sentence imposed on, the accused; he does not modify, alter or supersede the judicial record in any way.[7] The Judgement of the honourable court remains intact and unadulterated. The President acts under a Constitutional power commonly known as ‘mercy jurisdiction’, one that is on a different plane and is entirely different from judicial power- the former cannot be regarded as the extension of the latter. Hence, the act of cutting short a sentence by way of presidential pardon is an exercise of executive power which curtails the judgment of the judiciary but does not entirely do away with it.

But does this mean that the executive power to grant pardon is absolute and devoid of any supervision by the judiciary? The judgment refers to a string of past Supreme Court cases that have successfully attempted to answer whether the nature and subject matter of the President’s decision is amenable to the judicial process. The Supreme Court in Maru Ram v. Union of India[8], held that Article 72 “shall never be exercisable arbitrarily, mala fide or in absolute disregard of the finer canons of constitutionalism.” If the by product cannot get the approval of law, judicial hand must be stretched to it. The case of Kehar Singh v. Union of India[9] held that the President in exercise of executive clemency, can go into the merits of the case notwithstanding that the same has been judicially concluded by the Supreme Court. However, the order of the President can be subjected to judicial review on its merits only within the strict limitations delineated in Maru Ram’s case. In Tata Cellular v. Union of India[10], it was held that in case of a judicial review of a presidential pardon, the court does not act as a court of appeal since it lacks the expertise to correct an administrative decision, but reviews the manner in which the decision was made concerning itself with the sole question of legality. This concern should be whether the Presidential pardon a.) exceeded his power, b.) committed an error of law, c.) committed a breach of the rules of natural justice, d.) reached a decision which no reasonable tribunal has reached and e.) abused his powers.

Thus, in all these cited cases, it can be evidenced that courts can exercise judicial review over a presidential pardon to correct an unfair or arbitrary decision. However, the scope is limited. The power of the judiciary extends only to situations wherein the order has been passed a.) without the application of mind,  b.) without taking the advice of the council of ministers c.) is mala fide d.) that has been passed on extraneous or wholly irrelevant considerations e.) that relevant materials have been kept out of consideration and f.) one that suffers from arbitrariness.[11]

What amounts to such aforementioned situations and who decides that a presidential pardon comes within the ambit of such situations? To answer this, Justice Pasayat takes note of the opinion of eminent academic Lawyer Sir William Wade and states that the language of Article 72 is one of wide amplitude and one cannot spell out specific guidelines of the exercise of such power as facts vary from case to case. However, the doctrine that powers must be exercised reasonably should be in sync with the doctrine that courts should not usurp the discretion of the president to pardon.[12] It is only in the bounds of legal reasonableness[13], that the President has genuinely free discretion. If he crosses those bounds, he acts ultra vires. It is only in these cases[14] that the courts intervene and scope for judicial review is allowed.

In a nutshell, the judgement is one of paramount importance as it answers whether judicial review over presidential pardon makes Article 72 redundant in the negative. A corpus of past Supreme Court cases suggests that, Presidential Pardon is amenable for Judicial Revision, though limited – only available when executive clemency surpasses the boundaries of legal reasonableness resulting out of the sheer balance between administrative and judicial power still evident today.

[1] How do God’s Mercy and Justice work together in Salvation?, Got Questions, available at http://www.gotquestions.org/mercy-justice.html, last seen on 10/09/2015.

[2] AIR 2006 SC 3385.

[3] See Vol 67-A Corpus Juris Secundum, Pardon and Parole, 16-17 (1955).

[4] See 59 American Jurisprudence 2d, 5 (1964).

[5] Pardoning Power of President: Recent Developments, Academike, available at http://www.lawctopus.com/academike/pardoning-power-of-president-recent-developments/, last seen on 12/09/2015.

[6] As postulated by Justice Holmes of the Us Supreme Court in contrast with Chief Justice Marshall’s conception of pardon as a private act of grace which leaves ‘little room for peaceful coexistence’; J.P.Crouch, The Presidential Pardon Power, 88 (1st ed., 2009).

[7] Kehar Singh v. Union of India (1988) 4 SCC 75.

[8] AIR 1980 SC 2147.

[9] Supra 7.

[10] 1994 (6) SC 651.

[11] On the point of arbitrariness, there is no obligation on the President to convey reasons for the pardon. Reasons, if cited, are subject to legitimacy and relevancy.

[12] W. Wade and C. Forsyth, Administrative Law, 457 (1st ed., 1961).

[13] Courts should resist the temptation to draw the bounds too tightly and, according to its own opinion. It must strive to apply an objective standard and allow the President to have full range of choices which is ultimately what the legislature is presumed to have intended.

[14]  One in which the action of the President is so unfair or unreasonable that no reasonable person would have taken that course of action or one in which the President is influenced by considerations which ought not to influence him, or fails to take into account matters which he ought to take into account; See preceding para.

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