Understanding the President of India's Pardoning Power

The question asks us to consider two statements regarding the pardoning power of the President of India, as outlined in Article 72 of the Constitution.

Article 72 grants the President 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:

• 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.
• In all cases where the punishment or sentence is by a Court Martial.
• In all cases where the sentence is a sentence of death.

Analyzing Statement I: Limited Judicial Review

Statement I says that the exercise of this power by the President can be subjected to limited judicial review.

Originally, there was debate whether the President's pardoning power was completely beyond judicial scrutiny. However, the Supreme Court of India has clarified this position through various judgments, including:

• In the case of Maru Ram vs. Union of India (1980), the Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and is not a personal power of the President.
• Later, in the case of Kehar Singh vs. Union of India (1988), the Court reiterated that the exercise of this power is not a matter of grace but is a part of the constitutional scheme. While the Court cannot question the President's decision on merits, it can review the decision if it is arbitrary, irrational, malafide, or based on extraneous considerations.
• The position was further solidified in Epuru Sudhakar vs. Government of Andhra Pradesh (2006), where the Court held that the order passed by the President or Governor under their respective pardoning powers is subject to judicial review if it suffers from infirmities like having been passed without application of mind, being arbitrary, based on extraneous or irrelevant considerations, or being malafide.

Therefore, the judicial review is not a review of the decision itself on humanitarian or moral grounds, but a review of the *process* and the *grounds* on which the decision is based, ensuring it is not arbitrary or malafide. This confirms that there is a limited judicial review.

Based on these legal precedents, Statement I is correct.

Analyzing Statement II: President's Independent Exercise of Power

Statement II says that the President can exercise this power without the advice of the Central Government.

Article 74(1) of the Constitution states:

This article makes it clear that the President is required to act on the aid and advice of the Council of Ministers. This applies to all functions of the President, including the exercise of the pardoning power under Article 72.

Supreme Court judgments, including the one in Maru Ram vs. Union of India, have consistently held that the power under Article 72 is to be exercised by the President on the advice of the Central Government and not independently.

Therefore, the President cannot exercise the pardoning power without the advice of the Central Government.

Based on this, Statement II is incorrect.

Conclusion

Statement I is correct as the President's pardoning power is subject to limited judicial review to check for arbitrariness or malafides. Statement II is incorrect because the President exercises this power based on the aid and advice of the Central Government, not independently.

Thus, only Statement I is correct.

Revision Table: President's Pardoning Power

Additional Information: Pardoning Powers in India

The pardoning power is a significant executive power. Besides the President under Article 72, the Governors of states also have a similar power under Article 161, applicable to matters under state law.

Types of Clemency Powers:

• Pardon: Completely absolves the offender from all sentences, punishments, and disqualifications.
• Commutation: Substituting one form of punishment for a lighter form (e.g., death sentence to rigorous imprisonment).
• Remission: Reducing the period of sentence without changing its character (e.g., 5 years rigorous imprisonment to 3 years rigorous imprisonment).
• Respite: Awarding a lesser sentence in place of one originally awarded due to some special fact (e.g., pregnancy of a woman offender).
• Reprieve: Staying the execution of a sentence (especially death) for a temporary period to allow the convict to seek a pardon or commutation.

Both the President and the Governor exercise their respective clemency powers on the advice of their respective Council of Ministers. The scope of the President's pardoning power is wider than the Governor's, as the President can pardon sentences by Court Martial and in all cases involving the death sentence, while the Governor cannot.