Research Project Proposal

1. Topic: Pardon- Presidential or Ministerial and the Indian Supreme

Court’s role: A Critical Study

2. Abstract:

To pardon one for his crimes and to help him relive a life to correct

his mistakes is a Godly Act. In the real world, the Executive-

President and Governor is vested with the power to pardon a man.

However, in countries like India, where the Executive is a titular

head, the Act is mainly Ministerial. There also arises question as to

Judicial Review of the Presidential Act. In such a scenario, it is

necessary to stress on the fact that Executive’s power in granting

Pardon should not be hindered by Judiciary or Council of Ministers,

and that such Judicial Review of Pardoning is also an important

area which this Project would explain upon. This paper also seeks

to highlight the inherent mistakes with the Procedures for granting

Pardon, which causes unwanted Delays. Thus, The Author of this

Paper, by doing a critical study of Pardon in India will suggest the

various measures that can be adopted in resolving the tussle

between Executive and Judiciary and to reduce the delay caused by

existing complex procedures for Pardon.

3. Research Objectives and Questions:

5 Research Objectives:

1) To examine the constitutional and legal Framework with

respect to Pardon and Related Acts in India

2) To Analyse the legal framework with respect to power of

Pardon in other Countries

3) To

4) A

5) A

10 Research Questions:

1) A

2) A

3) A

4) A

5) A

6) A

7) A

8) A

9) A

10) A

4. Hypothesis

1) Power to Pardon though is constitutionally vested with

President of India, or Governor, it is mainly Ministerial

2) Procedural Complexities cause Delay in granting Pardon

5. Questionnaire

6. Literature Identified to be reviewed:

A) Books to be reviewed:

i) Seervai, H.M., Constitutional Law of India, (Universal Law

Publication Co. Ltd., Vol. 2, Edn. 4)

ii) Shukla, V.N., Constitution of India (Singh, M.P., Ed.,

Lucknow: Easterm Book Company, Vol. 2, Edn. 11, 2008)

iii) Ahmed, I.G., Book Review, 48 JILI 2 (reviewing Jai, Raj,

Janaki, Presidential Powers of Pardon on Death Penalty,

(2006))

B) Articles to be reviewed:

i) Kumar, Parul, The Executive Power to Pardon: Dilemmas

of Constitutional Discourse, (Last viewed on September

27, 2013)

<http://www.nujslawreview.org/pdf/articles/2009_1/parul-

kumar.pdf>

ii) Sahai, Rohan, Limits of the Pardoning Power under the

Indian Constitution, (Last viewed on September 27, 2013)

<http://www.nujslawreview.org/pdf/articles/2009_2/rohan-

sahai.pdf>

iii) Prof. Gaan, Narottam & Acharya, Nibedita, Does Article 72

transcend the Rule of Law, (Last viewed on September 27,

2013)

<

http://orissa.gov.in/e-magazine/Orissareview/2012/oct/eng

pdf/58-63.pdf>

iv) Balakrishna, Presidential Power of Pardon, 13 JILI 103.

v) Gandhi, Gopalkrishna, The Power to Pardon, The Hindu,

April 18, 2013,

<http://www.thehindu.com/opinion/lead/the-power-to-

pardon/article4627717.ece>

C) Cases to be reviewed:

i) Epuru Sudhakar v State of Andhra Pradesh, 2006 8 SCC

161

ii) Kehar Singh vs. Union of India, AIR 1989 SC 653

iii) Bachhan Singh vs. State of Punjab, AIR 1982 SC 1325

iv) Maru Ram vs. Union of India, AIR 1980 SC 2147

v) K. M. Nanawati vs. State of Bombay, AIR 1961 SC 112

7. Summaries of Literature to be reviewed:

a. Book Summary:

i) Shukla, V.N., Constitution of India (Singh, M.P., Ed.,

Lucknow: Easterm Book Company, Vol. 2, Edn. 11, 2008)

Prof. V.N. Shukla’s Constitution of India revised by M.P. Singh

has gone through all contemporary developments in the field of

law relating to Constitution. Where relevant, a comparative view

point of Constitutions of other Countries have also been

explained. This book provides commentary along with the most

recent case developments in each of the Articles in Constitution.

With regard to Article 72, which explains Power of President to

grant Pardon, not only Indian Cases, but also foreign cases on

the Executive’s power to grant pardons and reprieves are

explained. The cases where President can grant Pardons are

pointed out by analysing various case laws decided by Indian

Supreme Court. It is concluded under the notes on Article 72

that Exercise of Power of President is subject to Judicial Review

by laying down the grounds when Court can exercise Judicial

Review.

Under Article 161, which explain Governor’s power in granting

Pardons and other powers, this book has examined the various

circumstances where a Governor can and cannot exercise

powers. It is also concluded here that this power of Governor is

subject to Judicial Review in the light of case laws.

b. Article Summary :

i) The Executive Power to Pardon: Dilemmas of

Constitutional Discourse, Parul Kumar

This Article starts with an enquiry into the rationale

underlying the power of pardon and then explains the

various issues that the power of pardon has given rise to.

This Article traces the boundaries of the power stipulated

under the Indian Constitution, as well as jurisprudence

developed by the Supreme Court of India. One of the

major issues discussed is the ambiguity that doctrine of

separation of power has with respect to the power of

executive in granting pardon. Also explained is the

dilemmas posed by the issue of defining of extent of

executive power of granting pardon since there exists a

tussle between Executive and Judicial branches of the

State.

ii) Limits of the Pardoning Power under the Indian

Constitution, Rohan Sahai

c. Case Summary :

i) Epuru Sudhakar v. Govt. of Andhra Pradesh, ( 2006)

8 SCC 161

Epuru Sudhakar v. Govt. of Andhra Pradesh is an important

case that deals much with power of pardon, remission. etc

under Articles 161 and 72 and discusses the scope, power,

nature of the said articles. Here writ petition was filed before

the Supreme Court challenging the order passed by the

Governor of Andhra Pradesh whereby Respondent 2 was

granted remission of the unexpired period of about seven year’s

imprisonment. Writ petition filed contented inter alia that the

grant of remission by Governor was contented to be illegal as it

was based on extraneous and irrelevant materials, and thus that

the impugned order was passed without application of mind.

Even Reports of District level officials were improper for they

cited that conviction of Respondent was due to false

implications and false witnesses; convict maintained a cordial

relationship with family of deceased; and that he was a “good

congress worker”. In this case, Mr. Soli J. Sorabjee rendered

assistance amicus.

Supreme Court held that the order of Governor was

unsustainable and thus allowed the writ petitions. According to

Pasayat,J. the entire considerations were false and baseless and

held it had no relevance with the granting of pardon/ remission.

According to him, with such a pliable bureaucracy, there is need

for deeper scrutiny when power of pardon/ remission is

exercised. President or Governor has to keep in mind family of

victims, society as a whole and the precedent it sets for future.

Kapadia, J. held that every prerogative has to be subject to the

rule of law and that the principle of exclusive cognizance would

not apply when and if the decision impugned is in derogation of

a constitutional provision of the rule of law.

The Court held that pardon/ remission obtained on basis of

manifest mistake, patent representation or fraud, held (per

incuriam) can be rescinded or cancelled. The Apex Court in this

case also held that the person who seeks exercise of a high

constitution authority, has to show bona fides and must place

materials with clean hands.