Consider the following statements with regard to pardoning power of the President of India: I. The exercise of this power by the President can be subjected to limited judicial review. II. The President can exercise this power without the advice of the Central Government. Which of the statements given above is/are correct?
Contents15
- AI only
- BII only
- CBoth I and II
- DNeither I nor II
Show answer
Answer: (A) I only
(I) 'President's pardoning power can be subjected to limited judicial review' — CORRECT.
The Supreme Court has held in several cases (including Maru Ram v. Union of India, 1980 and Epuru Sudhakar v. Government of AP, 2006) that the President's clemency power under Article 72 is NOT absolute and can be judicially reviewed, though the scope of review is limited.
Courts can intervene if the decision is:
- arbitrary or mala fide
- taken without applying mind
- based on irrelevant considerations
- suffers from non-application of mind.
Courts generally don't question the merits of the clemency decision but can check the decision-making process. ✓
(II) 'President can exercise this power without the advice of the Central Government' — INCORRECT.
Under Article 74(1) of the Constitution, the President acts on the aid and advice of the Council of Ministers headed by the Prime Minister.
The pardoning power is NOT a personal/discretionary power of the President — it is exercised on the advice of the government.
The President cannot unilaterally grant pardons against the government's recommendation. ✗
Only Statement I is correct. Answer is (a).
Article 72 gives the President power to grant pardons, but this is not absolute - courts can review the decision-making process for arbitrariness or mala fide intent.
The President's pardoning power operates under Article 74(1), meaning it requires advice from the Council of Ministers, not independent presidential discretion.
UPSC is testing whether students understand the balance between executive clemency powers and both judicial oversight and constitutional constraints on presidential authority.
Presidential Pardoning Power
Indian Polity pardoning power President
Presidential Pardoning Power: Article 72 & Constitutional Framework
Article 72 grants President power to pardon, reprieve, respite or remit punishment
President acts on aid and advice of Council of Ministers, not independently
Pardoning power subject to limited judicial review since 1980s
Courts can review decision-making process, not merits of clemency
Constitutional Basis
Article 72 empowers the President to grant pardons for offences against Union law, court-martial cases, and death sentences. This power extends to four types of clemency decisions:
Pardon: Complete forgiveness, removes both punishment and disqualification
Commutation: Substituting lighter punishment for heavier one
Reprieve: Temporary suspension of execution
Remission: Reducing period of sentence without changing its character
Scope of Presidential vs Gubernatorial Pardoning Power
Aspect | President (Article 72) | Governor (Article 161) |
|---|---|---|
Jurisdiction | Union laws, court-martial, death sentences | State laws only |
Death Penalty Cases | Can pardon | Cannot pardon |
Court-martial Cases | Can pardon | Cannot pardon |
Constitutional Status | Higher authority | Limited to state matters |
Judicial Review Landmarks
Maru Ram v. Union of India (1980): Supreme Court first established that pardoning power is not absolute and can be judicially reviewed
Epuru Sudhakar v. Government of AP (2006): Court can examine if clemency decision was arbitrary, mala fide, or taken without application of mind
Shatrughan Chauhan v. Union of India (2014): Established that undue delay in deciding mercy petitions can be grounds for commutation
Courts generally do not question merits of clemency decision but can review the decision-making process
Question Analysis
This question tests two critical misconceptions about presidential powers. Statement I correctly identifies that pardoning power faces limited judicial review - courts can intervene for procedural irregularities but not question the wisdom of clemency decisions. Statement II incorrectly suggests the President can act unilaterally, when Article 74(1) mandates that all presidential actions require aid and advice of the Council of Ministers.
Trap: Assuming President's pardoning power is absolute - it faces limited judicial review since 1980
Trap: Confusing discretionary powers with pardoning power - President cannot grant clemency without government advice
Trap: Mixing Governor's limitations with President's scope - only President can pardon death sentences
Trap: Believing courts can review merits of clemency - they only review decision-making process
Article 74 Aid and Advice
Indian Polity advice of the Central Government Council of Ministers
Article 74: Presidential Actions & Aid-Advice Mechanism
Article 74(1) mandates President acts on aid and advice of Council of Ministers
42nd Amendment (1976) made presidential compliance with ministerial advice mandatory
President has limited discretionary powers in specific constitutional situations
Constitutional Framework
Article 74(1) establishes that there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President. The 42nd Amendment Act of 1976 made this advice binding on the President, removing any ambiguity about presidential discretion in normal circumstances.
Presidential Powers: Discretionary vs Aid-Advice Based
Type | Examples | Constitutional Basis | Government Advice Required? |
|---|---|---|---|
Discretionary Powers | Appointing PM when no clear majority, dissolving Lok Sabha | Constitutional situations | No - President's judgment |
Normal Executive Powers | Pardoning power, appointing ministers, assenting to bills | Article 74(1) | Yes - Mandatory advice |
Emergency Powers | Proclaiming Emergency under Articles 352, 356, 360 | Specific articles | Yes - On ministerial advice |
Key Constitutional Amendments
42nd Amendment (1976): Made ministerial advice binding on President, removed presidential discretion in normal matters
44th Amendment (1978): Introduced written advice requirement for Emergency proclamation, added some checks
Article 74(2): Courts cannot inquire into advice given by ministers to President - maintains separation of powers
Presidential Decision-Making Process
%%{init: {"flowchart": {"wrappingWidth": 460}}}%%
flowchart TD
s1["`**Matter comes before President**
Any executive decision requiring presidential action`"]
s2["`**Council of Ministers deliberates**
Ministers discuss and formulate advice under PM's leadership`"]
s3["`**Formal advice given to President**
Written advice presented through established channels`"]
s4["`**President acts on advice**
Constitutionally bound to follow ministerial advice (Article 74)`"]
s1 --> s2
s2 --> s3
s3 --> s4Trap: Assuming President can refuse ministerial advice in normal circumstances - only in specific discretionary situations
Trap: Confusing discretionary powers (appointing PM with no majority) with executive powers (pardoning)
Trap: Believing 42nd Amendment removed all presidential discretion - it only bound normal executive actions
Trap: Thinking President can independently exercise pardoning power - requires government advice like other executive acts
Judicial Review of Executive Actions
Indian Polity judicial review limited judicial review
Judicial Review of Executive Actions: Scope & Limitations
Courts can review executive actions for procedural correctness, not policy merits
Limited judicial review means courts check for arbitrariness, mala fide, non-application of mind
Separation of powers prevents courts from substituting their judgment for executive decisions
Constitutional Principle
Judicial review allows courts to examine whether executive actions conform to constitutional and legal requirements. However, courts distinguish between reviewing the legality of process versus the wisdom of decisions. Indian courts follow the principle of limited review - they can check procedural compliance but cannot substitute their judgment for executive policy choices.
Scope of Judicial Review: What Courts Can & Cannot Do
Courts CAN Review | Courts CANNOT Review | Legal Basis |
|---|---|---|
Arbitrary decisions | Policy merits | Article 14 - Right to Equality |
Mala fide actions | Political wisdom | Natural justice principles |
Non-application of mind | Executive discretion properly exercised | Due process requirements |
Procedural violations | Subject matter of executive decision | Separation of powers doctrine |
Landmark Cases on Executive Review
Rohtas Industries v. Agarwal (1969): Established that executive decisions can be challenged if they violate natural justice
Maneka Gandhi v. Union of India (1978): Expanded scope of judicial review to include due process beyond mere procedure
S.R. Bommai v. Union of India (1994): Courts can review President's Rule for constitutional validity and proper application
Union of India v. Sankalchand (1977): Executive discretion must be exercised reasonably and within constitutional bounds
Grounds for Judicial Review
# Judicial Review of Executive Actions
## Procedural Grounds
- Violation of natural justice
- Non-application of mind
- Failure to consider relevant factors
## Substantive Grounds
- Arbitrariness
- Mala fide exercise
- Constitutional violation
- Ultra vires action
## Limitations
- Cannot review policy merits
- Cannot substitute executive judgment
- Cannot interfere with political decisionsTrap: Believing courts can review merits of executive decisions - they only review process and legality
Trap: Confusing limited review with no review - courts can still intervene for constitutional violations
Trap: Assuming all executive actions are non-justiciable - procedural compliance can always be reviewed
Trap: Mixing judicial review with judicial activism - review has defined constitutional limits