Research Project Proposal 1.

Topic: Pardon- Presidential or Ministerial and the Indian Supreme Courts 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 Executives 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) ii) iii) Seervai, H.M., Constitutional Law of India, (Universal Law Publication Co. Ltd., Vol. 2, Edn. 4) Shukla, V.N., Constitution of India (Singh, M.P., Ed., Lucknow: Easterm Book Company, Vol. 2, Edn. 11, 2008) 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/emagazine/Orissareview/2012/oct/engpdf/58-63.pdf> iv) v) Balakrishna, Presidential Power of Pardon, 13 JILI 103. Gandhi, Gopalkrishna, The Power to Pardon, The Hindu, April 18, 2013, <http://www.thehindu.com/opinion/lead/the-power-topardon/article4627717.ece> C) Cases to be reviewed: i) Epuru Sudhakar v State of Andhra Pradesh, 2006 8 SCC 161

ii) iii) iv) v)

Kehar Singh vs. Union of India, AIR 1989 SC 653 Bachhan Singh vs. State of Punjab, AIR 1982 SC 1325 Maru Ram vs. Union of India, AIR 1980 SC 2147 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. Shuklas 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 Executives 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 Governors 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 years 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.