Introduction
The tensions between the executive’s pardon powers and the scope of judicial review have long challenged the doctrine of separation of powers in India. While the executive wields what is traditionally considered a judicial function, it cannot be entirely insulated from judicial scrutiny. Over time, Indian courts have progressively established that the pardon powers of the President and the Governor are subject to limited judicial review. However, with the new criminal laws being in force, the years that courts have spent outlining the presence and extent of judicial review seem to be in peril. The newly added §472(7) of the ‘Bhartiya Nagarik Suraksha Sanhita’ (BNSS), 2023 reads:
No appeal shall lie in any Court against the order of the President or of the Governor made under Article 72 or Article 161 of the Constitution and it shall be final, and any question as to the arriving of the decision by the President or the Governor shall not be inquired into in any Court.
In a series of two blogs, I will explore the implications of this new section in light of the existing judicial precedents, highlighting the risks it poses to the balance of powers, rule of law and fundamental rights. In Part I, I shall analyse the current position of law and highlight the necessity for judicial review on mercy powers with respect to the doctrine of separation of powers. In Part II, I shall firstly analyse the faults with the new provision and secondly, propose a way forward for a joint reading of the new section with judicial precedents.
Pre-BNSS position on Judicial Review of Pardon Powers
It is largely settled that the decisions of the President or Governor on pardons are non-appealable and reasons need not be given. However, while the decision on the mercy petition is non-appealable, it is not outside the purview of judicial review. Therefore, the problem arises in the interpretation of the latter part of the new section, specifically the ambit of the phrase ‘any question as to the arriving of the decision’. This phrase, on a plain reading, can be construed in an extremely broad nature, wherein it includes a bar on judicial review of both substantial and procedural questions of the President’s (and Governor’s) decision on mercy petitions.
The current position of law, based on precedents, is that judicial review is permissible, albeit only on the grounds of fundamental rights violations or procedural illegality (see here and here).Maru Ram prominently held that the President’s decision on mercy petitions u/a 72 can be subjected to judicial review on its merits only if the court requires to review whether the power is exercised on considerations or actions which are wholly irrelevant, irrational, discriminatory or mala fide. The doctrine of political thicket applies and thus only the materials that are judicially discoverable and justiciable are under judicial review. Thus, ‘materials’ used by the President to reach the decision can be brought under judicial scrutiny.
The court in Satpal v. State of Haryana and further in Epuru Sudhakar laid out that judicial review can be brought in if the decision of the President/Governor:
- Lacks application of mind,
- Is mala fide,
- Is based on extraneous or irrelevant considerations,
- Excludes relevant materials,
- Is arbitrary.
The court, finally, in Shatrughan Chauhan extended judicial review as a matter of fundamental right – where arbitrary means of disposing of a mercy petition may constitute a violation of the fundamental right to life and liberty, including only procedural questionsof the legality of the mercy powers. It also held that courts need to balance this with subjective discretion, where they cannot merely lay out certain guidelines for the executive to follow during a mercy petition’s decision.
Thus, despite being an extremely discretionary power, Article 72 and 161 powers must be exercised judiciously, considering all relevant facts and circumstances. While decisions on mercy petitions by the President or Governor are non-appealable, they are not immune from judicial scrutiny, on an application of the Wednesbury principle. The scope of judicial review is thus limited to assessing the legality and procedural propriety of the decision-making process, without dictating specific guidelines for the executive.
Separation of Powers vis-à-vis Judicial Review
The doctrine of separation of powers, in its modern form, suggests that there must be a relationship of checks and balances in the different organs of the government, while still maintaining autonomy (See U. R. Rai). On the lines of this doctrine is the power of mercy and its judicial review. Since the law is not perfect, there must be another source of mercy that convicts can go to as a last remedy. This authority is vested in the chief executive – the President (and the governor). In Maru Ram, the court remarked that separation of powers is violated when public powers are let to run riot, which includes the power of the executive to grant pardons.
By conferring the power of a final pardon on the executive, the Constitution is protecting convicts against judicial fallibility. Along with this power, however, come no checks in the constitution, and thus it becomes vulnerable to abuse. This is particularly essential considering the nature of mercy powers, which are highly discretionary and vulnerable to abuse. The 262nd Law Commission report remarked that the fate of the life of a death-row convict depends entirely on the ideology and views of the current government and the personal views and belief systems of the President. Additionally, while the courts, when deciding on death sentences, are under obligation to consider mitigating factors, the President (as per the constitution) is not obliged to do so. In fact, there exist no constitutional guidelines/safeguards to prevent the mercy powers from being used as a death row power.
In the absence of any such safeguards, there is frequently procedural unfairness in mercy petitions, resulting in unjust rejections. In Swaran Singh v. State of Uttar Pradesh, essential facts concerning the prisoner, which could be mitigating, were not disclosed to the Governor. In Shatrughan Chauhan, the rejection of the mercy petition occurred 13 years after filing and was never communicated to the convicts or their families. Thus, if the power were to be exercised on the whims and fancies of the executive, it may lead to gross injustice by using a provision that is aimed at preventing injustice and harsh sentences.
Additionally, the existence of a limited judicial review on pardon powers upholds the separation of powers and does not violate it. The executive, through the mercy power, checks and corrects judicial mistakes. The judiciary, through judicial review, ensures that the mistake was corrected in a just manner while restraining itself from looking into the merits of the executive decision. Mercy power is not distinct from other executive functions, as it intervenes after the judiciary has already applied its mind, and includes giving a sentence which may include the death penalty. This power, if abused, can undermine the trust and authority of the judicial process, due to the consequences it holds for the judiciary as well as the possible misuse of death penalties.
Hence, judicial review of how this mercy is exercised ensures the executive doesn’t exceed its bounds and undermine the broader justice system. It is not a restriction on the executive but a safeguard that maintains the integrity of the pardon power itself, preventing its politicization. The exercise of mercy powers should not become a tool for bypassing the judicial system or furthering political objectives. Thus, judicial review on procedural grounds is a minimal yet essential safeguard to ensure that the executive’s decisions are not only lawful but also legitimate.
The New Provision
The new BNSS Section complicates our current understanding of the extent of judicial review on pardon powers. During the little debates that happened on the new provisions, Justice Ritu Raj Awasthi (the Chairperson of the Law Commission of India) remarked that this provision goes contrary to the established judicial decisions of the Supreme Court. However, no further deliberation about the provision is on record.
In this regard, the political context in which the BNSS was passed itself becomes significant. With one ruling political party having a ‘brute’ majority in the parliament, the lines between the separation of legislative and executive become rather illusory. This gets even more blurry considering the significant number of disqualifications of opposition members of the Parliament and the increased ‘ordinance raj’ of the government (see here). Considering this, the peril to separation of powers is not merely about executive powers versus judiciary powers, but also a legislative which, working in consonance with the executive, is restraining judicial powers.
The Author is a 2nd-year student of National Law School of India University, Bengaluru
Image Credit: The Leaflet
Constitutional Law Society 
Leave a comment