8th June, 2018 was a landmark day in the Indian-American relationship, when the US president Donald Trump gave a presidential pardon to Dinesh D’Souza, an Indian-American conservative convicted of campaign finance fraud.[1] The case brought forth discourse, mainly by democrats, regarding the checks and balances of exercising such power in post-modern democratic societies. The scope of abuse which a president has on exercising such power by favoring convicts of their own affinity and ideals is unparalleled, to which the judiciary acts as the harbinger to keep such convicts in line.
I. INTRODUCTION
Recently, in India, the Kerala High Court gave a critical judgment, which reinforced the ratio set forth in the landmark case of Epuru Sudhakar v. State of Andhra Pradesh (“Epuru Sudhakar Case”).[2] The question before the Supreme Court in that case was regarding whether judicial review can be exercised to supersede the Presidential pardon. On appeal, the Supreme Court held that the President’s clemency power is not immune from judicial review but limited to certain grounds only.[3]
According to the constitutional scheme in India, the power to grant pardons in India has been vested with the President of India (“President”) as well as the Governor of States. The power can be exercised by the Head of the State on the basis of advice given to him by the executive authorities.
Pardon is considered as an act of mercy that alleviates the punishment associated with the offence for which the person has been convicted. The law of pardon in India has evolved from Section 295 of the Government of India Act, 1935 which vested the aforementioned power with the Governor-General. It was subsequently repealed and replaced by Article 72 of the Constitution.[4] The aim of the lawmakers while enacting this provision was to rectify any kind of judicial errors, keeping in mind factors such as public good and welfare into consideration. There is certain ambiguity surrounding the constitutional provision regarding the extent to which the power can be exercised by the President. Though it is not explicitly mentioned, in practice it has been accepted that the pardoning power of the President is not absolute in nature. It can only be exercised by the President in accordance with the advice provided by the council of ministers.
Furthermore, the law-makers have not provided any checks and balances in the constitution against the power of the President. The Apex court in the Epuru Sudhakar case has introduced judicial review of the pardon powers of the President and moved away from an autocratic interpretation to an interpretation where power can be exercised within the limited scope as provided.[5] It was held by the Supreme Court, that there exists power of judicial review even on a matter which has been vested by the constitution solely on the executive. This has sparked discourse on whether judicial review overrides the Presidential pardon making it redundant or whether the latter remains absolute in nature with no effect of the former.
A. NATURE AND EXTENT OF PARDONING POWER
The executive power of granting pardons is vested with the President, which is discretionary in nature. Such discretion cannot be applied arbitrarily but rather with the objective capacity to perceive the case correctly with due regard to public welfare.
Historically, the power to pardon has been a privilege rather than a right. In the case of Kehar Singh v. Union of India the apex court held that the power of pardon vested with the President and the Governor is not a right which can be availed by an individual but an act of grace whose basis is discretionary in nature.[6] The Supreme Court in Shamsher Singh v. State of Punjab held that satisfaction as per the given provision does not equate to personal satisfaction but satisfaction of the council of ministers that are providing aid and advice to the President.[7] This opinion was reaffirmed in the cases of Maru Ram v. Union of India.[8] This places a limitation on exercise of the power granted to the President in power.
There have been cases since the inception of the provision where the Council of Ministers who are aiding the President suffers from lack of objectivity and biases. Also, in the generation of coalition governments there is a fair probability that the advice given will not reflect the values of being true, just and impartial. The Apex Court has been reluctant to impose any kind of guideline for the given provision as it believes that such constraints might restrict the power of the executive to rectify judicial errors.
II. THE LANDMARK JUDGEMENT
Judicial review as a mechanism to keep a check on the exercise of executive clemency emerged in the ratio given by Justice Arjit Pasayat (“Justice Pasayat”)in the Epuru Sudhakar case.[9] The judgment was delivered in response to the grant of remission of a sentence provided to a convicted activist affiliated to the Indian National Congress, by the then Governor of Andhra Pradesh. It was alleged during the trials that all the relevant facts were not brought to light and the order was passed without application of mind. Firstly, Justice Pasayat addressed the grounds for subsistence of the Presidential pardon which he justified through indicating the means by which the provision satisfies the objectives of a punishment in the society. Further, he also classified presidential pardon as a constitutional responsibility which has to be carried out with reasonable discretion.The judgment given by the Apex Court further reflects on judicial precedents such as Tata Cellular v. Union of India which held that in case of a judicial review of a presidential pardon the Court is not allowed to act as a court of appeal as it lacks expertise to rectify an administrative decision but scrutinizes the matter in which the order was given with the sole question of legality.[10] The judgment not only provided guidelines but also reinstated the provision of pardon enshrined in the Indian Constitution
A. APPREHENSIONS REGARDING JUDICIAL REVIEW
In the case of Syed T.A. Haqshbandi v. State of J&K, it was held by the Supreme Court that judicial review is allowed to be exercised only to the extent of scrutinizing the process of granting the decision and not the decision itself.[11] Mercy petitions in principle level has every possible avenue of being exploited according to the whims and fancies of the person in charge. Though the president is bound to act based on the advice provided by his council of ministers there is no mechanism to ensure that the aforementioned steps are being carried out. According to the constitutional provision, there are very few remedies apart from impeachment available to the ministers if the President declines to follow their order. Additionally, the judiciary cannot tender into the advice of the ministers in any manner thus making it impossible to set aside a presidential pardon.
III. CONCLUSION
Judicial review as a mechanism allows to set up limited grounds for a provision which is discretionary and wide in its interpretation. It ensures that any absolute power that is vested with the executive is not exploited. Presidential pardon is important for the society as it allows the executive to set aside certain decisions taken up by the courts where they are restricted by the rule of law. On a comparative note, the executive is allowed to examine the merits of the case keeping public welfare and objectives of the punishment in mind . Judicial review makes sure that the discretionary power granted to the President which supersedes their verdict is not exploited by a single individual holding such an eminent post and is quintessential for the functioning of a democratic society.
Judicial review is the power vested on the judiciary to review the constitutionality of an act in a jurisdiction or the ability of the judiciary to review the constitutionality of the law itself. The biggest issue regarding judicial review of presidential pardon is that the exercise of the review supersedes the power granted to the President and annuls it. Presidential pardon, as a provision, was provided to ensure a layer of accountability over the judiciary to curb judicial errors, if any. Existence of Presidential pardon is important as it takes moral and humanitarian grounds into consideration whilst also considering the status quo of the society while passing the decision. Judicial review helps to keep checks and balances to make sure that this discretionary privilege provided to the president is not exploited in an absolute manner. Also judicial review is a basic structure of the constitution, thus the pardoning power of the executive body must be subjected to the review of judiciary at least to a certain extent. With discourse being raised at America with the allegations of abuse of power against president Trump and questions being raised against the provision it is pertinent to maintain the balance of judicial review as a safeguard mechanism in a constitutional democratic society.
This post has been authored by Arnav Bose, a second year student of The West Bengal University of Juridical Sciences, Kolkata.
[1] ABC News, Donald Trump’s pardon of Dinesh D’Souza confirms broad scope of US Constitutional power, June 5, 2018, available at https://www.abc.net.au/news/2018-06-05/donald-trump-presidential-pardon-dinesh-dsouza-us-constitution/9831420 (Last visited at 11th Dec, 2018).
[2] Epuru Sudhakar v. State of Andhra Pradesh,(2006) 8 SCC 161.
[3] Mohammed Ashraf v. State of Kerala (2015) 658.
[4]The Constitution of India, 1950, Art.72.
[5] supra 2
[6] Kehar Singh v. Union of India, AIR (1989) SC 653.
[7] Samsher Singh v. State of Punjab,(1974)2 SCC 831.
[8]Maru Ram v. Union of India, (1981) 1 SCC 107.
[9] supra note 2.
[10] Tata Cellular v. Union of India, (1994) 6 SC 651.
[11] Syed T.A. Haqshbandi v. State of J&K (2003) 9 SCC 592
Constitutional Law Society, NUJS 