It is well-settled law that the innocence of an accused person in a criminal trial is within the exclusive domain of a court of competent jurisdiction as this is essentially a judicial function. Governor’s powers of granting pardon under article 161 of the constitution being an exercise of executive function are independent of the court’s power to pronounce on the innocence of guilt of the accused. The powers of a court of law in a criminal trial and subsequent appeal up to the Hon’ble Supreme Court and the President/Governor under Article 72/161 operate in totally different arenas, and the nature of these powers is also totally different from each other.

THE GOVERNOR OR PRESIDENT DOES NOT HAVE THE JURISDICTION TO DECLARE SOMEONE INNOCENT

The guild of the accused, who prays for pardon by the Governor, cannot be decided by the Governor. The powers under article 161 are only limited to granting pardon with respect to the sentence. The powers to grant pardon is not a matter of privilege; it is a matter of performance of official duty. Such powers are vested in the president or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on performance of the duty. The Supreme Court has held that this discretion has to be exercised on public consideration alone. Granting of pardon by it no means would conclude to state that it’s an overturning of a verdict of conviction but rather an executive action that mitigates or sets aside the punishment for a crime. The courts in a number of judicial decisions have explicitly stated that it “eliminates the effect of conviction without addressing the defendant’s guilt or innocence.”While granting pardon, the President and the Governor have to consider the effect of such pardon on the family of the victims and the society as a whole. 

GROUNDS FOR CHALLENGING PARDON

The Supreme Court in Epuru Sudhakar and Anr v. Govt.A.P, stated the ground for when such an order of the President/Governor can be challenged. The grounds are;

  1. That the order has been passed without application of mind;
  2. That the order is mala fide;
  3. That the order has been passed on extraneous or wholly irrelevant considerations;
  4. That relevant materials have been kept out of consideration;
  5. That the order suffers from arbitrariness.

GRANT OF PARDON TO CONVICT BY PRESIDENT/GOVERNOR IS NOT IMMUNE FROM JUDICIAL REVIEW

The Hon’ble Supreme court of India has held that the powers granted under article 161 are open for judicial review. To decide on the innocence or otherwise of an accused person in a criminal trial is within the exclusive domain of a court. The Governor’s power of granting pardon under article 161 is an exercise of executive function. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. Considerations of religion, caste, or political loyalty are irrelevant and fraught with discrimination. 

The exercise or non-exercise of the pardon power by the President or Governor, as the case may be, is not immune from Judicial review. Limited judicial review is available in certain cases. 

In Maru Ram &Ors. v. Union of India, AIR1980 Supreme Court 2147 Krishna Lyer J., speaking for the Constitution Bench, held that although the power under Article 72 and 161 were very wide, it could not “run riot.” The Hon’ble Bench held that no legal power could run unruly like John Gilpin on the horse, but “must keep sensibly to a steady course” All public powers including constitutional powers, shall never be exercisable arbitrary or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. The Bench cautioned that political vendetta or party favoritism should not be the basis of exercising such power. 

In Swaran Singh v. State of U.P, a three-Judge Bench held that “this court has no power to touch order passed by the Governor under Article 161 of the Constitution. If such powers were exercised arbitrarily, mala fide, or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law, and in such cases, the judicial hand must be stretched to it”. In a number of judicial decisions, the Hon’ble Supreme court has held that the exercise or non-exercise of powers of pardon by President or Governor was not immune from judicial review, and limited judicial review was available in certain cases. 

In Satpal and Anr. v. State of Haryan, the Supreme Court observed that the power of granting pardon under article 161 is very wide and does not contain any limitation as to the time at which the occasion on which and the circumstances in which the said could be exercised. Thereafter the Hon’ble Bench held that 

 “ the said powers being a constitutional power conferred upon the Governor by the constitution is amenable to judicial review on certain limited grounds. The court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government of if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is mala fide one or the Governor has passed the order on some extraneous consideration.”

In conclusion, it can be said that all powers, including constitutional powers, shall never be exercised arbitrarily or mala fide, and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power.