In Part I of this blog, I have shown how judicial review on pardon powers of the President and Governor operate in the status quo, wherein courts have a limited power of judicial review, on procedural matters. I have also illustrated that this limited judicial review harmonises a balance between executive and judicial powers, upholding the doctrine of separation of powers. In Part II, I shall firstly analyse the faults with the new BNSS provision and secondly, propose a way forward for a joint reading of the new section with judicial precedents.
Legislative Overreach?
The new provision seems to directly ‘overrule’ the current judicial precedent of powers of judicial review on mercy powers. One key question to ask here is whether it is even constitutional for the legislative to essentially reverse a set judicial precedent, especially when it involves a question of separation of powers.
Indira Gandhi v Raj Narain clarified that the parliament cannot act as a legislature by directly nullifying a judicial pronouncement, as it would be encroaching on the doctrine of separation of powers. It also ruled that the parliament can only do so if it has specific power and has acted judicially, considering all relevant facts and application of law. The latter directive does not seem to be fulfilled in the case of §472(7) since there is practically nothing on record to show any parliamentary deliberation on this section.
In Madras Bar Association vs. Union of India, the court laid down the following principles for a legislative act to ‘overrule’ a judicial precedent:
a. The legislative act removes the basis of the judgment. These should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution.
b. The test is that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed.
c. Nullification of mandamus by an enactment would be an impermissible legislative exercise.
d. Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the Rule of law and Article 14 of the Constitution of India.
The current legislative act seeks to overrule a constitutional precedent by statutory enactment. Apart from this obvious procedural irregularity, the new BNSS section does not follow the principles laid out above. Firstly, it does not seek to alter the underlying reasons for reading in judicial review in Article 72 mentioned in Sections II and III. It does not address the specific grounds or need for judicial review, which are laid out in the previous sections. It also does not provide an alternative mechanism such as laying out procedural guidelines for mercy power exercise, in order to ensure the judicious exercise of mercy powers. Instead, it imposes an absolute bar on judicial review. Thus, it broadly bars all inquiries into the decision-making process without distinguishing between these established grounds, showing no attempt to cure specific defects pointed out by the courts.
Secondly, §472(7) is an infringement of the fundamental right of life and liberty under Article 21. Judicial review is an essential element in ensuring fundamental rights. In Kesavanda Bharti, the court remarked that “As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened…”. Similarly, in Minerva Mills, the Court observed “…the fundamental rights conferred upon the people will become a mere adornment [without the power of judicial review] because rights without remedies are as writ in water.” An absolute bar on judicial review can lead to arbitrary and discriminatory decisions, infringing on these fundamental rights. Prolonged delay, illegality and arbitrariness in the execution of mercy petitions is a violation of the right to life and liberty (see here and here). The new provision essentially removes all remedies for an individual aggrieved by arbitrary executive actions on their right to life and liberty. This arbitrariness can be checked by judicial review (albeit limitedly) of the executive power. Additionally, since §472(7) violated the protections guaranteed under Article 21, it also infringes the constitutional mandate laid out in Article 13(2). Therefore, by taking away the power to check on the biased and arbitrary use of mercy powers, this provision violates the fundamental right of life, liberty and the doctrine of the rule of law.
The provision also goes against the express recommendation of the law commission in the 262nd report. The report stated that “an infliction of additional, unwarranted and judicially unsanctioned suffering on death sentence prisoners, breaches Article 21…”. Therefore, the commission was strongly in favour of a mechanism of judicial review on mercy powers to protect the fundamental rights of death-row convicts.
Thus, these new provisions risk undermining the fairness and thoroughness of the mercy process. Exercising pardon powers, to put it simply, is generally a matter of life and death. Thus, the courts must retain the ability to intervene when there is procedural unfairness, arbitrary decisions, or supervening circumstances. This is the only way to uphold the constitutional safeguards meant to protect the most vulnerable.
Possible road forward for §472(7)
In the NHPC case, the Supreme Court ruled if the MBA principles are not followed, then “such instances would amount to an attempt to ‘legislatively overrule’ a Court’s judgment by a legislative fiat and would therefore be illegal and a colourable legislation.” If the new legislation fails to follow the guidelines, such actions would be deemed unconstitutional under Article 13(2), for infringing upon the principle of separation of powers, enacting an illegitimate legislative overruling and violating Article 14 of the Constitution.
Therefore, a petition challenging the constitutionality of this section may very well be maintainable in the Court. However, it is proposed that instead of declaring the entire section unconstitutional, courts can, alternatively, interpret the text of the section to align it with established judicial precedents.
The major question falls back on how ‘any question as to the arriving of the decision’ is to be interpreted. As argued before, the executive power of mercy cannot be absolute, as it violates the basic principles of separation of powers and the rule of law. If and when this question reaches the courts, they must read the provision in favour of judicial review. However, a question to address here is, can the courts read in judicial review the express wordings of §472?
According to the ‘golden rule’ of interpretation of statutes, if the textual understanding of a statutory provision causes ambiguity or absurdity, the courts may derive a secondary meaning based on legislative intent or precedents. The current provision is ambiguous as to what questions amount to ‘questions of reaching the decision’. Additionally, it is also absurd to interpret it broadly as it would cause gross violations of fundamental rights, the doctrine of separation of powers and the rule of law, as already argued.
In addition to this, the courts must use the same reasoning that they have used to interpret the review of Article 74(2). Article 74(2), on a plain reading, acts as an absolute bar on judicial review on the substance and adequacy of advice tendered by the ministers to the present. This is parallel to the new BNSS section, which too on a plain reading seems to act as an absolute bar on “any questions as to arriving of the decision” by the President.
The SC in S.R Bommai (and subsequently other cases) held that Article 72 aims to protect the substance of the advice tendered but cannot be said to apply to the materials used to give such advice. Therefore, a limited judicial scope persists. In the pre-BNSS position, this principle already extends to the powers under Article 72, since mercy powers are also bound to be exercised on the advice of the council of ministers.
Therefore, the phrase ‘any questions of arriving at decisions’ can be interpreted to allow for a limited judicial review, where the scope of the ‘questions’ can be read as only substantial questions and not procedural. If the judiciary does not interpret this very narrowly, this provision could set a dangerous precedent for further curtailment of judicial review on executive powers. Thus, a narrow reading is crucial for upholding the democratic principle of separation of powers and the rule of law.
Conclusion
Section 472(7) of the BNSS, 2023 poses a significant challenge to the established legal framework governing judicial review of executive pardon powers. While the provision appears to bar any form of judicial inquiry into decisions made by the President or Governor under Articles 72 and 161, this interpretation threatens to undermine the core constitutional principles of separation of powers, rule of law, and the protection of fundamental rights. The judiciary has long held that while the executive’s mercy powers are broad, they are not absolute, and judicial review plays a crucial role in preventing arbitrary, discriminatory, or procedurally flawed decisions.
Thus, the courts must adopt a harmonizing interpretation of Section 472(7), aligning it with existing precedents that allow for limited judicial scrutiny. By doing so, the judiciary can uphold the essential checks and balances that prevent the abuse of executive power while ensuring that the fundamental rights of individuals, particularly those facing the death penalty, are not compromised.
The Author is a 2nd-year student of National Law School of India University, Bengaluru
Image Credit: The Leaflet
Constitutional Law Society 
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