Judicial Review of the Power of Pardon

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they do no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases.- Lord Acton (Quoted by Justice Krishna Iyer in Maru Ram v Union of India)

The Power of Pardon was historically vested in the British monarch. At common law, a pardon was an act of mercy whereby the king “forgiveth any crime, offence, punishment, execution, right, title, debt, or duty.” This power was absolute, unfettered and not subject to any judicial scrutiny. From this source, it came to find a place in the Constitutions of India and the USA as well as the Constitutional structure of Britain. However it could hardly survive in its unrestrained nature in the democratic systems of these states.

Over a period of time, it became diluted in the U.K. and U.S.A. to a limited extent through the exercise of judicial scrutiny. But its greatest dilution has occurred in India. The Supreme Court has conclusively established in the landmark cases of Maru Ram and Kehar Singh that the power of pardon is subject to judicial scrutiny. In subsequent cases, the Court enumerated specific grounds on which such scrutiny could be exercised. However the Court has wisely stopped short on laying down any explicit guidelines for the exercise of this power. This article seeks to analyze the Court’s jurisprudence with respect to the justiciability of the power of Presidential Pardon after taking a look at British and American practice and to find out the current legal position with respect to the same.

History of the Power of Pardon in Britain

In his Commentaries, Blackstone said that the Crown's use of the pardon power to ensure that justice was administered with mercy was one of the great advantages of monarchy over any other kind of government, because it softened the rigors of the general law.

Although Blackstone is undoubtedly correct in asserting that clemency in England often served the salutary purpose of mitigating a system of criminal justice which was harsh and inflexible, the lack of meaningful checks on the prerogative resulted in frequent abuses. For instance, felons were typically granted a pardon conditioned on their agreeing to travel to the colonies and work on the plantations. The clemency power was also used to exact testimony from accomplices that would incriminate co-defendants, a practice that became a "mainstay" of the English criminal justice system in the eighteenth and nineteenth centuries.

Current Position in the U.K.
At present, the monarch exercises the power on the advice of the departmental minister the Home Secretary. The Home Secretary’s decision can in some situations be challenged by judicial review. In R v Secretary of State for the Home Department ex parte Bentley the Court held that the formulation of policy for the grant of a free pardon was not justiciable but a failure to recognize that the prerogative of mercy was capable of being exercised in many different circumstances and over a wide range was.

Thus, all in all, it may be concluded that in the UK judicial review of the power of pardon is extremely restricted in scope. However the British constitutional structure recognizes the supremacy of parliament and provides an altogether narrower scope for judicial review than the Indian Constitution which tends towards separation of powers. Thus British precedent in this area has limited application to the India.

Position in the USA
Article II of the US Constitution grants the President of the United States, the “Power to Grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.”

The Court has been cautious in its interpretation of the pardoning power where conditions have been imposed in grant of pardons which conflicted with the constitutional rights of the persons who were pardoned. In Hoffa v Saxbe, a condition imposed on a pardon was challenged as unconstitutional. The District Court held that the “framework of the constitutional system” establishes limits beyond which the President may not go in imposing and subsequently enforcing conditions on pardons. In Burdick v. United States , the Court upheld an offender's right to refuse a presidential pardon granted in order to compel him to testify in a case which conflicted with his right against self-incrimination. However apart from judicial scrutiny in this area the power of pardon has been allowed to be exercised freely.

The lack of any standards or checks on the exercise of the clemency power has not stood the American system of justice in good stead. Commentators have noted that unbridled discretion in pardoning threatens to permit the President to shield himself and his subordinates from criminal prosecution and to undermine the essential functions of coordinate branches of government.

Indeed, President Richard Nixon's advisors had such confidence in the scope of the presidential pardoning power that they seriously explored the possibility of the President pardoning himself. Governors (and, many would contend, Presidents) have regularly exercised the clemency power in ways that are clearly at odds with society's interests, including granting or denying pardons to convicted murderers solely because of campaign promises made to supporters. One governor was even impeached and removed for particularly blatant abuses of the pardoning power. Apart from the evident abuse of the power of pardon, the inherent differences in the structure of the Government of the USA from that of India renders the adoption of the US system unsuitable. The USA follows a Presidential System of Government in which the executive is relatively insulated from the pressures of legislative party politics and more stable in nature than the Indian Parliamentary system. The system thus introduces a degree of responsibility in the use of the pardoning power which would not be possible in India.

The Indian Scenario
Before the Constitution came into force, the law of pardon in India was the same as the one in England since the sovereign of England was the sovereign of India. From 1935 onwards, the law of pardon was contained in Section 295 of the Government of India Act which did not limit the power of the Sovereign. The result was up to the coming into force of the Constitution, the ‘exercise of the King’s prerogative was plenary, unfettered and exercisable as hitherto.
’
In the Constitution of India, the power of Presidential Pardon is found in Article 72. It empowers the President to grant pardons, reprieves, respites or remissions of punishment in all cases where the punishment is for an offense against any law to which the executive power of the union extends. The same is also available against sentences of courts-martial and sentences of death. A parallel power is given to the Governor of a state under Article 161. A pardon may be absolute or conditional. It may be exercised at any time either before legal proceedings are taken or during their pendency or after conviction. The rejection of one clemency petition does not exhaust the pardoning power of the President.

The power of pardon under Article 72 was reviewed in the two landmark cases of Maru Ram v Union of India and Kehar Singh v Union of India. In Maru Ram the Court while deciding upon the validity of 433A of the Code of Criminal Procedure, examined the power of pardon under Article 72. It observed.

“Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favoritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise….For example, if the Chief Minister of a State releases every one in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive.”

The Court summarized its findings by stating
“Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.”

In Kehar Singh the Court considered the nature of the President’s power under Article 72 while dealing with a petition challenging the President’s rejection of a mercy petition by Indira Gandhi’s assassin, Kehar Singh. The Court explicitly held in that ‘Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.’ However the Court qualified this finding by holding that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram. What are these limitations? Considerations that are arbitrary or ‘wholly irrelevant, irrational, discriminatory or mala fide.’ However in Kehar Singh the Court declined to lay down guidelines for the exercise of the power under Article, stating that there is sufficient indication in the terms of Art.72 and in the history of the power enshrined in that provision as well as existing case law. The decisions in Maru Ram Kehar Singh still hold the field and thus the present position is that Presidential Pardon under Article 72 is subject to judicial review on the grounds mentioned in Maru Ram v Union of India.
The Governor’s power of pardon under Article 161 runs parallel to that of the President under Article 72 and thus several cases based on the same have a bearing on the Presidential Power under Article 72. Moreover judgments dealing with Article 72 have simultaneously deal with Article 161 and vice-versa.

In the early case of K.M. Nanavati v State of Bombay the a reprieve granted by the Governor under Article 161 was held constitutionally invalid since it conflicted with the rules made by the Supreme Court under Article 145. In Swaran Singh v State of U.P. 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.

The Court quashed the order reasoning that the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner, hence the ‘order fringed on arbitrariness.’ In Satpal v State of Haryana 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. The Court also noted the fact that the accused was a member of a political party and had committed the murder during election year.

In the recent judgment of Epuru Sudhakar and Anr. v Government of Andhra Pradesh and Ors. 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. The Court observed in this context,

“The only reason why a pariah becomes a messiah appears to be the change in the ruling pattern. With such pliable bureaucracy, there is need for deeper scrutiny when power of pardon/remission is exercised.”

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. Among these are non-consideration of relevant factors such as length of the sentence already undergone, the prisoner’s behavior and involvement in other crimes and consideration of extraneous or irrelevant grounds such as political affiliation.
Yet another aspect of the President’s power of pardon that has been subject to judicial scrutiny is the time taken for exercising the same.

In Shivaji Jaising Babar v State of Maharashtra a delay of 4 yrs in taking a decision on the exercise of this power on the prisoner’s mercy petition was held to be sufficient ground to alter the prisoner’s sentence.

A worrying trend is respect of the President’s power of pardon is the growing tendency of successive Presidents to disregard the advice of the Council of Ministers in the exercise of this power. Former President A.P.J. Abdul Kalam inherited 12 pending mercy petitions from his predecessor which grew to 20 in his tenure . Despite recommendations for rejection of the same by the Home Ministry, he rejected only 1 petition in his 5 yr tenure – that of Dhanonjoy Chatterjee whose mercy petition had already been rejected by two former Presidents, Shankar Dayal Sharma and K.R. Narayan. The Supreme Court has held in Maru Ram and Kehar Singh that the power under Articles 72 and 161 of the Constitution is to be exercised by the Central and the State Governments and not by the President or Governor on their own. A move by successive Presidents to act on their own jeopardizes the Constitutional scheme and the Court may soon be called upon to decide whether such action furnishes an additional ground for judicial review. Such a contention was already raised in Satpal v State of Haryana which the Court rejected on evidentiary grounds without going into the question as to whether it would be a pardon could be judicially reviewed on this ground.

Conclusion
The power of pardon has thus conclusively been made subject to judicial review. Two extreme cases demonstrate the diametrically opposite position of judicial scrutiny of the power of pardon at present in comparison to that which existed immediately after independence. In Re Channugadu the Madras High Court held that the general pardon by the Governor granted to all prisoners to mark the formation of the State of Andhra Pradesh did not amount to an act of interference with the due and proper course of justice. 53 yrs later the Supreme Court has stayed a pardon granted by the Governor of the same state to 1500 prisoners to mark the 150th anniversary of the Revolt of 1857.

This is both a good and bad development. It is a good development in so far as it will prevent a misuse of this important constitutional power by unscrupulous politicians in favour of people with power and influence. However it may serve to further increase the burden of cases on the courts and altogether prolong the judicial process. It may also prevent the executive from utilizing this power for reasons that although may not be strictly be in conformity with constitutional principles, may nevertheless be in the interest of the State. Thus, while the trend towards greater judicial scrutiny of the power of pardon is undoubtedly a welcome one, the judiciary must leave the executive with a window of discretion in the exercise of the same.

Endnotes
*Edward Coke, The Third Part of the Institutes of the Laws of England (4th ed. London 1669)
*Ibid
*Sebba, Clemency in Perspective, in Criminology in Perspective: Essays in Honor of Israel Drapkin 221, 225-28 (S. Landau & L. Sebba eds. 1977) (reporting criticisms of the clemency power in various societies throughout history).
*Ibid
*Ibid
*(1993 (4) All E.R. 442)
*378 F. Supp. 1221 (D.D.C. 1974).
*236 U.S. 79 (1915).
*Smith & Johnson, Presidential Pardons and Accountability in the Executive Branch, 35 Wayne L. Rev. 1113, 1115 (1989).
*Duker, The President's Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 525 (1977).

*Pardon of Richard M. Nixon and Related Matters: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. 154 (1974) (statement of Gerald Ford, President of the United States).

*Barnett, The Grounds of Pardon, 17 Journal of Criminal Law & Criminology (1926) (discussing former South Carolina governor Coleman Blease's pardon of William Mills based on a campaign promise in 1912);

*3 U.S. Dep't of Justice, The Attorney General's Survey of Release Procedures 150-53 (1939) [hereinafter Survey] (describing the impeachment of Oklahoma Governor J.C. Walton for selling pardons).

*H.M. Seervai, Constitutional Law of India, (4th ed. Vol. 2, 2002), Universal Book Traders

*S 295: Provisions as to death sentence (1) Where any person has been sentenced to death in a Province, the Governor General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India, outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the province.

*Provided that nothing in this sub-section affects any powers of any officer of His Majesty's forces to suspend, remit or commute a sentence passed by a Court-Martial.

(2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor-General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.”

*Per Kapur J, K.M. Nanavati v Bombay, (1961) 1 SCR, p. 541
*V.N. Shukla, Constitution of India, (10th ed. 2001), Eastern Book Co.
*Channugadu Re, AIR 1954 Mad 911
*AIR 1980 SC 2147
*AIR 1989 SC 653
*Ibid, para 1242
*Ibid, para 1248
*Ibid, p. 1115
*(1961) 1 SCR, p. 541
*1998 (4) SCC 75
*2000 (5) SCC 170
*Writ Petition (crl.) 284-285 of 2005
*AIR 1991 SC 2147
*Ritu Sarin, Beg your pardon Mr. President? The Indian Express, (23rd Oct, 2005)
*Ibid
*Supra Note 28
*AIR 1954 Mad 911
*The Indian Express, SC puts brakes on Andhra Govt’s I-Day pardon for 1500 Prisoners, August 17, 2007,
available at http://www.indianexpress.com/story/210852.html

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