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Report No. 262

C. Standard of Judicial Review for Examining Exercise of Mercy Powers

6.3.1 The Supreme Court has characterized the nature of mercy provisions (Articles"72 and 161) as constitutional duty rather than privilege or a matter of grace. The Supreme Court observed the following in Shatrughan Chauhan:

In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the People in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under Articles 72/161 of the Constitution of India is to be exercised on the aid and advice of the Council of Ministers. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 19.

6.3.2 The Supreme Court has further held in Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, that the exercise of power under Article 72 by the President and Article 161 by the Governor is subject to limited form of judicial review. See also Narayan Dutt v. State of Punjab, (2011) 4 SCC 353, at paras 14-31; B.P. Singhal v. Union of India, (2010) 6 SCC 331, at para 76; Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 22.

The Supreme Court has also held that the mercy prerogative under Articles 72 and 161should be discharged in line with the principle of rule of law, of which fairness and legal certainty are essential elements. Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 65-67. Further, various decisions of the Supreme Court have provided the following grounds for a challenge to the exercise of these clemency powers: See Maru Ram v. Union of India, (1981) 1 SCC 107, at paras 62-65; Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 34-38; Narayan Dutt v. State of Punjab, (2011) 4 SCC 353, at para 24; Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 23-24.

(a) Power has been exercised by the Governor/President himself without being advised by the Government,

(b) In the exercise of the power, the Governor/President has transgressed his jurisdiction,

(c) If the order passed in pursuance to Articles 72 or 161 betrays non-application of mind or mala fide basis

(d) Power has been exercised on the basis of political considerations

(e) That the order suffers from arbitrariness

(f) That the manner of exercise of power suffers from the following defects:

  • extraneous or wholly irrelevant consideration have been taken into account;
  • that relevant materials have been kept out of consideration


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