President’s clemency power is not immune from Judicial Review

Kerala High Court: Dealing as to whether the power of the President/ Governor as provided in the Constitution is subjected to Judicial Review, a division bench of Ashok Bhushan CJ. and A.M. Shaffique J, reiterated that the decision of the President of India and the Governor under Article 72 and 161 of the Constitution respectively, is not immune from the power of Judicial review under Article 226 of the Constitution, however, only very limited judicial power is available in certain cases.

The present appeal was filed by the appellant, who was convicted under Section 138 read with Section 141 of the Negotiable Instrument Act, 1881, when his clemency petition before the President of India was rejected. The Counsel for the petitioner, P.B. Sahasranaman, contended that Chief Judicial Magistrate should not proceed with the steps in execution of the judgment, as clemency power of the President is subject to judicial review. R. Prasanth Kumar, Counsel for the respondent contended that the present petition is nothing but a device for delaying the execution of sentence although conviction has been confirmed upto the Apex Court.

The Court relied on Epuru Sudhakar v. Govt. of A.P. (2006) 8 SCC 161, where apex court elaborately considered the nature of the power of President. The Court observed that no error has been committed by the learned Single Judge in refusing the grant of prayers, as the conviction of the appellant was confirmed by the Apex Court and the clemency petition was rejected by the President. The Court further observed that the clemency power of the President/Governor is subject to judicial review, but only in certain cases where decision making authority exceeds its powers; commits an error of law; commits a breach of rules of natural justice; abuses its powers etc. However, the Court noted that in the present case, the decision of the President does not attract any ground which may come within the limited scope of judicial review. Accordingly, the Court upheld the decision of learned Single Judge and directed for execution of the judgment. T. Mohammed Ashraf v. State of Kerala2015 SCC OnLine Ker 9538  decided on 27.05.2015

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