Power to pardon should be subject to mandatory judicial review

The power to pardon which the President of India and the Governors are empowered to exercise under our constitution have come for a debate in the context of Sanjay Dutt being convicted by the Supreme Court of India.

A good review of the provisions of the law is available here: http://www.lawteacher.net/administrative-law/essays/power-to-pardon-an-analysis-law-essays.php

For the general information of the public, I am reproducing the two articles of the Constitution that provide powers to the President and the Governor.

Article 72 : Powers of the President:

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

Article 161 : Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases:

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

However the orders if any are subject to Judicial Review as per the following Supreme Court decisions.

In Swaran Singh v State of U.P. [10] , the Governor of U.P. had granted remission of life sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence of murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get approval of law and in such cases, “the judicial hand must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

In the early case of K.M. Nanavati v State of Bombay [11] , Governor granted reprieve under Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings under Article 145.

In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [12] , it was held by the Supreme Court that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:

The order has been passed without application of mind.

The order is mala fide.

The order has been passed on extraneous or wholly irrelevant considerations.

Relevant material has been kept out of consideration.

The order suffers from arbitrariness.

Now that Mr Sanjay Dutt has said he will not apply for pardon, and Mr Katju insists that he will do so, the issue of whether a third party can apply for pardon will also come for discussion. In either case the review would be possible if any person either Mr Subramanya Swamy or Mrs Abha Singh files a review petition.

We are all aware how the Governors of different States are appointed. The position is occupied by hard core politicians who some times return to politics after a stint as a Governor. In such cases, granting them powers to overrule the Supreme Court judgements is very very dangerous. So far the only pardons that are being discussed were remission of death sentence and converting them into life sentence. This had some logic. But what is being discussed now is whether a prison sentence of 3 years and 6 months should be cancelled. If this is allowed then there would be no respect for any Court judgement and all the politically strong criminals will be able to get the support of politician Governors and escape punishments given to them by Courts after years of prosecution.

Such pardons will not be of any use to common people since it would only be used by politically powerful persons. Persons like Raja Bhayya or even Kanzimoli (under DMK Government in the State) can never be punished.

The provision of pardon is therefore not to be exercised without a very stringent control mechanism. The best option is to develop a public referendum if a suitable mechanism is in place (possible in the Netizen world). In the case of Sanjay Dutt type references which is closely related to “National Security” the state Government alone (in this case Maharashtra) should not have a say. Hence a referendum should be conducted by the same collegium that elects the Indian President which includes the MLAs/MLCs of all the State Government before any executive action is contemplated. Mere advise of the State Cabinet should not be considered acceptable.

Subsequently the decision should be subjected to mandatory review at Supreme Court before the terms of pardon are taken cognizance of.

Hopefully some of these points will be discussed in detail in the coming days.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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