📘 Topic Overview

Topics: Pardoning power of President • Council of Ministers • Executive Power of Union

Delhi Law Academy Jaipur presents below for aspirants of RJS, DJS, PCS(J) and other Judicial Services throughout India a short Note on the Pardoning power of the President and the Council of Ministers.

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Supreme Court discussed in this post:
Maru Ram v Union of India
•	The power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own.

Swaran Singh v State of U.P
•	it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get approval of law.

K.M. Nanavati v State of Bombay
•	Governor granted reprieve under Article 161 which was held unconstitutional

Epuru Sudhakar   v.   Govt. of A.P.   
•	A limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts.

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Article 72                      Pardoning power of President
•	President has the power
o	to grant pardons or remissions of punishment
o	to suspend, remit or commute sentences
•	of any person convicted
o	by a Court Martial
o	of any offence against a law on a matter within executive power of Union or
o	where the sentence is a sentence of death

DLA’s comments on Articles 72

Effect of pardon
•	Grant of pardon wipes off the guilt of accused and brings him to the original position of innocence as if he had never committed the offence for which he was charged. 
•	It affects both the punishment prescribed for the offence and the guilt of the offender.

Maru Ram v Union of India
•	Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.

Swaran Singh v State of U.P
•	Governor of U.P. had granted remission of life sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence of murder. Supreme Court interdicted the Governor’s order and said that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get approval of law and in such cases, “the judicial hand must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

K.M. Nanavati v State of Bombay
•	Governor granted reprieve under Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings under Article 145.

Epuru Sudhakar   v.   Govt. of A.P.   
•	It is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. 
•	Granting of clemency by the President or Governor can be challenged on the following grounds: 
o	The order has been passed without application of mind.
o	The order is mala fide.
o	The order has been passed on extraneous or wholly irrelevant considerations.
o	Relevant material has been kept out of consideration.
o	The order suffers from arbitrariness.

Article 73        Executive Power of Union
•	Executive power of Union extends to:
o	all matters enumerated in the Union List
o	those matters in Concurrent List where expressly so provided by Constitution or Parliament
o	rights and authority by virtue of any treaty or agreement with other countries

Article 74                              Council of Ministers
•	Council of Ministers with PM at the head
o	to aid and advise the President
o	who shall act in accordance with such advice
•	President may return the advice for reconsideration
o	but the subsequent advice is binding
•	Such advice is not to be inquired into by any court

Other provisions as to Ministers
Article 75(1)
•	Prime Minister is to be appointed by President
o	Other ministers are to be appointed by him on advice of PM
Article 75(1A)
•	Number of ministers
o	not to exceed 15% of total members of Lok Sabha
Article 75(1B)
•	An MP disqualified under Tenth Schedule
o	is not to be appointed as Minister
Article 75(2)
•	Ministers to hold office during pleasure of President
Article 75(3)
•	Council of Ministers is collectively responsible to Lok Sabha
Article 75(5)
•	A minister who is not an MP for 6 months
o	ceases to be a minister
Article 75(6)
•	Salaries of ministers are to be determined by Parliament

Question:
•	Is it essential to have a Council of Ministers under Article 74(1) even at a time when the House of the People has been dissolved or its term has expired?

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