LATE JUSTICE P. B.

SAWANT NINTH NATIONAL MOOT COURT COMPETITION 2022-23

TEAM- CODE - 119

LATE JUSTICE P. B. SAWANT NINTH NATIONAL MOOT COURT COMPETITION -2022 -2023

Before

THE HON’BLE FEDERAL COURT OF INDUSLAND

WRIT PETITION NO OF 2023

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDUSLAND

PEOPLE’S FRONT FOR DEMOCRATIC RIGHTS ............................................. PETITIONER

v.

UNION OF INDUSLAND ..................................................................................... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE FEDERAL COURT OF INDUSLAND

MEMORANDUM ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

1. TABLE OF ABBREVIATION ...................................................................................................... 03

2. INDEX OF AUTHORITIES .......................................................................................................... 04

3. STATEMENT OF JURISDICTION .............................................................................................. 06

4. STATEMENT OF FACTS ........................................................................................................... 07

5. ISSUES RAISED .......................................................................................................................... 08

6. SUMMARY OF ARGUMENTS. ................................................................................................. 09

7. ARGUMENTS ADVANCED ..................................................................................................... 10

I. WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT IN

GRANTING THE PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE

CONSTITUTION AND WHETHER THE PRESIDENT WHILE PARDONING MR

SUNDAR DAS HAS IGNORED HIS POLITICAL AFFILIATION AND HENCE

DISREGARDED THE VERY CANON OF CONSTITUITIONALISM AS ALLEGED BY

THE PETITIONER ?. ................................................................................................................ 10

II. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF PARDON BY

FEDERAL COURT IN THE PRESENT CASE VIOLATES THE DOCTRINE OF

SEPARATION OF POWERS?................................................................................................ 15

III. WHETHER THE POWER OF THE PRESIDENT TO GRANT PARDON IS

INDEPENDENTOF THE ADVICE OF THE COUNCIL OF MINISTERS ? ................... 19

8. PRAYER ..................................................................................................................................... 25

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TABLE OF ABBREVIATIONS

& And

AIR All India Reporter

Art. Article

Ed. Edition

etc. Et cetera

i.e. id est

Ors. Others

p. Page

para Paragraph

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

Supp. Supplement

u/a Under Article

v. Versus

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INDEX OF AUTHORITIES

I. TABLE OF CASES

INDIAN AUTHORITITES

SERIAL CAUSE TITLE CITATION PAGE

NUMBER NUMBER

01 B.L. Wadhera v. Union of India 1996 SCC (2) 594 21

02 Bikas Chatterjee v. Union of India (2004) 7 SCC 634 16

03 Dhananjay Chatterjee v. State of 1994 SCR (1) 37 20

West Bengal
04 Epuru Sudhakar & Anr vs Govt. Of W.P (crl.) 284-285 12
of 2005
A.P. & Ors
05 Kehar Singh vs Union of India 1989 AIR 653 16

06 Kuljit Singh v. Lt. Governor of Delhi 82 SCR (3 20

07 Maru Ram v. Union of India 1980 AIR 2147 20

08 Mohinder Singh v. State of Punjab 2013 CrLJ 1559 16

(1565) (SC)
09 Munnu Raja and Anr v. The State of 1976 AIR 2199 23
Madhya Pradesh
10 Pyare Lal v. State of Haryana Cr. Appeal no. 261 16
OF 2021
11 R.C. Cooper v. Union of India AIR 1970 SC 564 21

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12 R.K. Anand v. Registrar, Delhi High Cr. Appeal no. 1393 14

of 2008
Court
13 Rai Saheb Ram Jawaya v. State of AIR 1955 SC 549 18
Punjab
14 Samsher Singh v. State of Punjab 1974 AIR 2192 20

15 Satpal v State of Haryana Cr. Appeal no. 261 of 12

2021
16 U.N.R. Rao v. Indira Gandhi 1971 AIR 1002 22

17 Uttar Pradesh v. Sanjay Kumar 2012) 8 SCC 537 16

II. LIST OF STATUTES REFFERED

1. Constitution of India, 1950
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872

III. LIST OF BOOKS REFERRED :

1. M.P Jain , Indian Constitutional Law, ( 8th Ed, Lexis Nexis, 2018)
2. V.N Shukla, Constitution of India, Eastern Book Co, ( 11th Ed, Eastern Book
Company,2010)

IV. LIST OF LEXICONS REFERRED :

1. Wharton’s Concise Law Dictionary, (6th Ed., LexisNexis, 2014).
2. Bryan A. Garner, Black’s Law Dictionary, (10th Ed., Thomas Reuters West, 2014).

V. LIST OF WEBSITES REFERRED:

1. https://www.ebc.in/

2. https://www.scconline.in/

3. http://manupatra.in/
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STATEMENT OF JURISDICTION

The Counsel for the Petitioners, most humbly and respectfully, submits that it has approached
this Hon’ble Federal Court of Indusland under Article 32 of the Constitution of
Indusland,19501.
The present memorandum sets forth the facts, contentions, and arguments in the present case.

1
32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the SC by appropriate proceedings for the enforcement of the rights conferred by

this Part is guaranteed

(2) The SC shall have power to issue directions or orders or writs, including writs in the nature of habeas

corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the

enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the SC by clause ( 1 ) and ( 2 ), Parliament may

bylaw empower any other court to exercise within the local limits of its jurisdiction all or any of

the powers exercisable by the SC under clause ( 2 )

(4) The right guaranteed by this Art. shall not be suspended except as otherwise provided for by this Constitution.

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STATEMENT OF FACTS

I. Indusland, the largest democracy in the world owes its origin to the Parliamentary
Democracy of United Kingdom where it observes the Common Law Principles at the same
time includes distinctive features like Written Constitution, Federalism, Multiparty
System, Sovereign State, Supremacy of Constitution and Judicial Review.

II. The present case is an outcome of Public Interest Litigation (PIL) filed in Federal Court of
Indusland by an NGO named People’s Front for Democratic Rights (PFDR), challenging
the grant of pardon to Mr. Sunder Das by the President of Indusland.

III. PFDR is an NGO who have filed many Public Interest Litigations in the constitutional
courts of the country for the protection of the democratic and civil rights of the people.

IV. In the present case the convict Mr. Sunder Das was a businessman and Former Member of
the Legislative Assembly of Southland who was convicted by the Sessions Court for the
murder of Rajat Singh and his family comprising of his wife and two teenage daughters
claiming political rivalry among Singh and Das as the reason for the murder.

V. Delving further into the reason behind the political rivalry it was found that the alleged
political rivalry between Mr. Sunder Das and Mr. Rajat Singh was because Mr. Singh was
the leader of a local unit of labour union and both had differences of opinion on some
political issues which were alleged to be the reason of murder.

VI. Mr. Sunder Das was convicted by the sessions court with death penalty. Against this
decision, an appeal was filed to the High Court of Southland and further Special Leave
Petition (SLP) in Federal Court, both of which were unsuccessful.

VII. However, the President granted the pardon to Mr. Sunder Das on the ground that his post-
conviction report by Jail Authorities affirmed his good behaviour in jail.

VIII. This pardon by the President has been challenged by the Petitioners in the hon’ble Federal
Court.

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ISSUES RAISED

ISSUE 1

WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT IN

GRANTING THE PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION AND WHETHER THE PRESIDENT WHILE PARDONING MR
SUNDAR DAS HAS IGNORED HIS POLITICAL AFFILIATION AND HENCE
DISREGARDED THE VERY CANON OF CONSTITUITIONALISM AS ALLEGED BY
THE PETITIONER ?

ISSUE 2

WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF PARDON BY

FEDERAL COURT IN THE PRESENT CASE VIOLATES THE DOCTRINE OF
SEPARATION OF POWERS ?

ISSUE 3

WHETHER THE POWER OF THE PRESIDENT TO GRANT PARON IS

INDEPENDENT OF THE ADVICE OF THE COUNCIL OF MINISTERS ?

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SUMMARY OF ARGUMENTS

ISSUE 1`: WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT

IN GRANTING THE PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION AND WHETHER THE PRESIDENT WHILE PARDONING MR
SUNDAR DAS HAS IGNORED HIS POLITICAL AFFILIATION AND HENCE
DISREGARDED THE VERY CANON OF CONSTITUITIONALISM AS ALLEGED BY
THE PETITIONER ?

The Counsel for Respondent would contend this issue in affirmation as the President as rightly
exercised the power vested on him u/a 72 of the Constitution based on relevant considerations
and that there is a presumption of constitutionality of ‘pardon granted by the President’.
Moreover, the PIL filed is driven by political vendetta and thus, is liable to be dismissed.

ISSUE 2: WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS ?

It is humbly submitted before this Hon’ble Court that the scope of judicial review of the pardoning
power is very limited and, in this case, the Federal Court cannot encroach this scope because the
power exercised by the President in granting pardon to Mr. Das is beyond this scope.

ISSUE 3: WHETHER THE POWER OF THE PRESIDENT TO GRANT PARON IS

INDEPENDENT OF THE ADVICE OF THE COUNCIL OF MINISTERS ?

The counsel for respondents humbly submits in the court of laws that the Pardoning power of the
President is not independent of the advice of the council of ministers as the power to pardon rests
on the advice tendered by the executive to the President, who subject to the provisions of Article
74(1) must act in accordance with such advice.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE EXECUTIVE POWER EXERCUSED BY THE PRESIDENT

IN GRANTING THE PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION AND WHETHER THE PRESIDENT WHILE PARDONING MR
SUNDAR DAS HAS IGNORED HIS POLITICAL AFFILIATION AND HENCE
DISREGARDED THE VERY CANON OF CONSTITUITIONALISM AS ALLEGED BY
THE PETITIONER ?

The power of pardon has been conferred upon the President and the Governor through Articles 72
and 161 of the Constitution respectively. Art. 72 reads as follows:

Power of President to grant pardons, etc., and to suspend, remit or commute sentences in
certain cases: The President shall have the power to grant pardons, reprieves, or remissions of
punishment or suspend, or remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to any
matter to which the executive power of the union extends;

(c) in all cases where the sentence is a sentence of death.

The Counsel for Respondent, hereinafter referred to the “State”, would contend this issue in
affirmation and this is substantiated in a two-fold manner: [1.1] the executive power exercised by
the President in granting pardon to Mr. Sundar Das is as per the spirit of the Constitution [1.2] the
President while pardoning Mr. Sundar Das has indeed ignored his political affiliations.

1.1. THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT IN GRANTING

PARDON TO MR. SUNDAR DASIS AS PER THE SPIRIT OF THE
CONSTITUTION:

1.1.1 Human life is perhaps the most precious gift of nature, which many describe as the
Almighty. Except in the most serious circumstances of extreme culpability, the death

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sentence is not required. This was the rationale behind the framers of the Constitution
enacting Art. 72.
1.1.2 The President’s purpose of granting pardon to the Mr. Das (hereinafter referred to as the
“convict”) was an act of mercy to “endear the sovereign to his subjects, and contribute
more than anything to root in their hearts that filial affection and personal loyalty which
are the sure establishment of a prince.” In country like Indusland, where the power is
exercised by an elected head of the state, this principle could translate into upholding the
widespread views of the public which has, directly or indirectly, chosen the head of the
state as its representative.
1.1.3 The philosophy underlying the impugned pardon power is that “every civilised country
recognises, and has therefore provided for, the pardoning power to be exercised as an act
of grace and humanity in proper cases. Without such a power of clemency, to be exercised
by some department or functionary of a government, a country would be most imperfect
and deficient in its political morality, and in that attribute of deity whose judgments are
always tempered with mercy”1.
1.1.4 Thus, the use of terms such as ‘mercy’, ‘clemency’ and ‘grace’ in relation to this power
indicate that it is intended to be in the nature of a prerogative, entirely based on the
subjective satisfaction of the President. Granting of pardon is in no sense an overturning of
judgement of conviction, but is rather an executive action of the President in mitigating or
setting aside the punishment for a crime.2 Thus, irrespective of the political affiliations of
the President, in this present case, the President’s pardon just eliminated the effect of
conviction without addressing the convict’s guilt or innocence.
Presumption of constitutionality of ‘pardon granted by the President’:
1.1.5 In Maru Ram's case (supra) it was held that all public power, including constitutional
power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair
and equal execution are guarantors of the valid play of power.
1.1.6 The State would argue that it is constitutionally wrong to suspect the use of pardoning
power by the executive head of the country and the court needs to presume that public
power is not irresponsibly used by the Supreme Constitutional Office.

1
See 59 American Jurisprudence, 2nd Edn., p. 5
2
Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, Writ Petition (crl.) 284-285 of 2005.
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Exercise of pardoning power based on relevant considerations:

1.1.7 This Hon’ble Supreme Court spelt out specifically the considerations that need to be taken
account of while exercising the power of pardon, namely, the period of sentence in fact
undergone by the said convict as well as his conduct and behavior while he underwent the
sentence. The Court held that not being aware of such material facts would tend to make
an order of granting pardon arbitrary and irrational3.
1.1.8 Referring to Maru Ram's case4 and it is further stated that presidential power acts as a
safety value in exceptional cases where the legal system fails to deliver a morally
acceptable result and the said power intends to secure public welfare and the pardoning
power has become virtually the only way that a sentence, once final, can be reconsidered
and, in appropriate cases, reduced.
1.1.9 The exercise of the pardoning power, in this case, was only based on two of his
considerations - advice of the Council of Ministers, that he is bound to obey u/a 74(1) of
the Constitution and the report of the Jail Authorities about Mr Das's good behaviour in the
jail.
1.1.10 When it comes to the admissibility of the post-conviction record as a ground for
consideration for pardoning, the stage of exercise of various forms of the pardoning power
in Indusland extends only to punishments and sentences, and therefore, can be exercised
only when such penalty has already been imposed, that is, after the person has been tried
and found guilty. However, post-conviction, the power of pardon should be made available
in its plenary form and no artificial restrictions should be imposed on the same.
1.1.11 In the present case, the Jail Superintendent submitted a report about the good behaviour of
Mr. Das during his three years stay in jail and a good prison record is reasonable ground
for grant of pardon by President. The hope of being pardoned itself served as an incentive
for the convict to behave himself in the prison institution and helped considerably in
solving the issue of prison discipline. Thus, this is a substantial ground for pardoning the
convict from the death penalty.
1.2. THE PRESIDENT WHILE PARDONING MR. SUNDAR DAS HAS INDEED
IGNORED HIS POLITICAL AFFILIATIONS:

3
Satpal v State of Haryana, CRIMINAL APPEAL NO.261 OF 2021. (Arising out of SLP (Crl.) No.5802 of 2018).
4
(1981) 1 SCC 107.
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1.2.1. The presidential power acts as a safety value in exceptional cases where the legal system
fails to deliver a morally acceptable result and the said power intends to secure public
welfare and the pardoning power has become virtually the only way that a sentence, once
final, can be reconsidered and, in appropriate cases, reduced.
1.2.2. “When the Proclamation is challenged by making out a prima facie case with regard to its
invalidity, the burden would be on the Union Government to satisfy that there exists
material which showed that the Government could not be carried on in accordance with
the provisions of the Constitution. Since such material would be exclusively within the
knowledge of the Union Government, in view of the provisions of Section 106 of the
Evidence Act, the burden of proving the existence of such material would be on the Union
Government.”
Pardon based on public considerations:
1.2.3. The power to grant pardon is an enumerated and prerogative power in the Constitution
itself. The power of executive clemency is not only for the benefit of the convict, but
while exercising such a power, the President or the Governor, as the case may be, has to
keep in mind the effect of his decision on the family of the victims, the society as a whole
and the precedent it sets for the future5.
1.2.4. It is not a matter of privilege. It is a matter of performance of official duty. It is 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. This
discretion, therefore, has to be exercised on public consideration alone. The President and
the Governor have to keep in mind the effect of such pardon on the family of the victims,
the society as a whole and the precedent it sets for the future.
1.2.5. Mr. Sunder Das was a businessman and Former Member of the Legislative Assembly of
Southland6. Considering the services the of the convict herein, has done to the society,
the President tried to remove the stigma of guilt via pardoning him from the death penalty.
Thus, the State justifies the existence of the Pardon, by acknowledging the fallibility of
human judgment being undeniable even in a supremely legally trained mind and therefore

5
Supra note 2.
6
Moot proposition para 4.
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such errors were remedied by grant of pardon, which scrutinized the validity of the
threatened denial of life.
The PIL filed is driven by political vendetta:
1.2.6. The present PIL was filed by the petitioners, People’s Front for Democratic Rights, based
on a string operation conducted by media, the spokesperson of the President’s office
revealed that Minister for Sports had a keen interest in getting the pardon sanctioned for
Mr. Das7. The State would humbly place the contention that the impugned sting was
conducted to fulfil their personal interest not in public interest, and stings without public
interest are unlawful8. This is an unregulated and arbitrary attempt by the media indulging
into unauthorised entrapments. It had misused the liberty given to them by manipulation
of facts and evidences obtained by means of such covert investigations, which causes
more harm than good. Further media reports can be speculative, hence can mislead public
opinion as well as can influence judges to be biased.
Thus, the State strenuously contend that the petition is the outcome of a political vendetta and the
President in granting pardon to the convict has not, thereby, disregard the very canon of
constitutionalism as alleged by the Petitioner.

7
Moot propostion para 6.
8
R.K.Anand vs Registrar,Delhi High Court, CRIMINAL APPEAL NO. 1393 OF 2008.

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ISSUE 2 : WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS ?

It is humbly submitted before this Hon’ble Court that the judicial review of presidential power of
pardon by Federal Court in the present case, indeed violated the doctrine of separation of powers
that is considered to be among the basic structure of the Indusland Constitution. The Respondents
would be contesting this issue on the stance that the scope of judicial review of the pardoning
power is very limited and, in this case, the Federal Court cannot encroach this scope because the
power exercised by the President in granting pardon to Mr. Das is beyond this scope.

2.1. The power to pardon, vested in the President u/a 72 of the Indusland Constitution is an
executive power. The power to grant pardon and remission of sentence are essentially
executive function to be exercised by the Head of the State after taking into consideration
various matters and the Court is precluded from examining the wisdom or expediency of
exercise of the said power. It is a constitutional responsibility of great significance, to be
exercised when occasion arises in accordance with the discretion contemplated by the context.

2.2. The power of judicial review, as has been held by this Court in the case of Kehar Singh vs
Union of India9 is of a very limited nature10, namely, whether the authority who had exercised
the power had the jurisdiction to exercise the same, and whether the impugned order goes
beyond the power conferred by law upon the authority who made it, and this being the position
the grounds on which the impugned order is being attacked essentially pertain to the propriety
of the President in the matter of exercising power under Article 72 after the conviction and
sentence passed by this Court and as such, it should not be interfered with. Considerations for
exercise of power under Articles 72/161 may be myriad and their occasions protean, and are
left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant,

9
1989 AIR 653, 1988 SCR Supl. (3)1102.
10
Mohinder Singh v. State of Punjab, 2013 CrLJ 1559 (1565) (SC): (2013) 3 SCC 294; Uttar Pradesh v. Sanjay
Kumar, (2012) 8 SCC 537: 2012 AIR SCW 5157: (2012) 8 SCALE 3.
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irrational, discriminatory or mala fide. Only in these rare cases will the court examine the
exercise11.

2.3. In Kuljit Singh v. Lt. Governor of Delhi12, the Supreme Court expressed the view that the
pardoning power of the President is a wholesome power that should be exercised ‘as the justice
of a case may require’, and that it would be undesirable to limit it by way of judicially-evolved
constraints. The doctrine of judicial review that powers must be exercised reasonably has to be
reconciled with the no less important doctrine that the court must not usurp the discretion of
the public authority which Parliament appointed to take the decision. Within the bounds of
legal reasonableness is the area in which the deciding authority has genuinely free discretion.
If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to
draw the bounds too tightly, merely according to its own opinion. It must strive to apply an
objective standard which leaves to the deciding authority the full range of choices which
legislature is presumed to have intended13.

2.4. There cannot be any dispute with the proposition of law that the power of granting pardon
under Art. 72 is very wide and do not contain any limitation as to the time on which and the
occasion on which and the circumstances in which the said powers could be exercised. But this
position, would be justified in interfering by the Court, with an order passed by the President
in exercise of power under Art 72 of the Constitution if the order impugned is satisfying any
one of the following grounds14:
A. that the order has been passed without application of mind
B. that the order in question is a mala fide one
C. that the order has been passed on some extraneous or wholly irrelevant considerations
D. that relevant materials have been kept out of considerations
E. that the order suffers from arbitrariness.

11
Pyare Lal v. State of Haryana, Criminal Appeal No.1003 of 2017; Bikas Chatterjee v. Union of India, (2004) 7 SCC
634: (2004) 10 SCALE 190.
12
1982 AIR 774, 1982 SCR (3) 58.
13
Passage from Professor Wade's Administrative Law was relied upon: (SCC p. 457, para 17).
14
Epuru Sudhakar & Anr. v. State of A.P., Writ Petition (crl.) 284-285 of 2005.
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2.5. In cases involving judicial review, courts may choose to enter the domain of review only
insofar as procedural impropriety and the rights of individuals are concerned, and not on the
substantive merits of the decision made by the President/Governor. While exercising the power
of judicial review the Court shall keep in mind that where a power is vested in a very high
authority, it must be presumed that the said authority would act properly and carefully after an
objective consideration of all the aspects of the matter and further, the higher the power the
more cautious would be its exercise.

2.6. In the present case, the President of Indusland has not violated any of the said conditions and
the pardon granted to Mr Sundar Das was based on the relevant considerations that were given
due importance by the President while making a decision on whether pardon should be granted.
Thus, it is contended that this cannot be brought for judicial review and doing so will result in
the violation of doctrine of separation of powers (hereinafter referred to as “Doctrine of SOP”).

2.7. The Indusland Constitution has not indeed recognized the doctrine of SOP in the absolute
rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can be very well be said that our constitution
does not contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another15. There can be a violation of SOP only when the essential function of one
branch is taken over by another.

2.8. It is submitted that the power of the judiciary to make decisions regarding the guilt of an
accused and the appropriate sentence in each case may be said to be more limited than the
power to decide the acceptance or rejection of a mercy petition for two reasons. First, it may
not be possible for the judiciary to take into account certain factors that can be considered only
after the sentence of the convict has begun, such as the post-conviction behaviour and
contributions made by the convict. This is an essential function of the President to grant
pardons and a judicial review made when it is not exercised with arbitrariness or with a mala
fide intention, is indeed violating the doctrine of SOP and resulting in a judicial overreach.

15
Rai Saheb Ram Jawaya v. State of Punjab, AIR 1955 SC 549, p. 556: (1955) 2 SCR 225.
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Thus, the Counsel for the Respondent strenuously contend that the petition is the outcome of a
political vendetta. All relevant materials have been considered by the President, a high
constitutional authority who passed the order granting pardon. It is a case where materials existed
which warranted the grant of pardon and the judicial intrusion should not be allowed in this matter.
Considering the limited scope for judicial review, the writ petition deserves to be dismissed.

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ISSUE 3: WHETHER THE POWER OF THE PRESIDENT TO GRANT PARDON IS

INDEPENDENT OF THE ADVICE OF THE COUNCIL OF MINISTERS ?

The counsel for respondents humbly submits in the court of laws that the Pardoning power of the
President is not independent of the advice of the council of ministers and that the petitioners’ claim
that the ‘Power of the President to grant pardon is independent of the advice of the Council of
Ministers and the Constitution of Indusland does not provide such limitation’ is Invalid , which
can be explained by the following contentions: [3.1] Constitutional Validity under Article 74(1)
[3.2] Mandatory Binding of the advice [3.3] View of the Constitutional framers [3.4.] Reliance
on the UK constitutional provisions.

3.1. CONSTITUTIONAL VALIDITY UNDER ARTICLE 74(1)

3.1.1. Even though Article 72 of the Induslandian Constitution renders the President the power of
pardoning, it is not absolute in nature. The power to pardon rests on the advice tendered by the
executive to the President, who subject to the provisions of Article 74(1) must act in accordance
with such advice.

3.1.2. It is to be noted that the Article 74(1) of the Constitution literally states that the Council of
Ministers headed by the Prime Minister would aid and advise the President, “who shall, in the
exercise of his functions, act in accordance with such advice and hence the action of the President
of welcoming advice from the council of ministers , in the present case, stands constitutionally
valid.

3.1.3. In the leading case of Samsher Singh v. State of Punjab16, a seven-judge bench of the
Supreme Court held that the satisfaction of the President or the Governor required by the
Constitution is not their personal satisfaction, but the satisfaction of the Council of Ministers on
whose aid and advice the President and the Governor exercise their powers and functions.

3.1.4. The judgment in Samsher Singh was applied to the power of pardon in the case of Maru
Ram v. Union of India17, where the Supreme Court held that it is not up to the President or the

16
1974 AIR 2192.
17
1980 AIR 2147.
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Governor to take independent decisions while deciding whether to pardon an individual, since they
are bound by the advice of the Council of Ministers.
3.1.5. Moreover, In the case of Dhananjay Chatterjee v. State of West Bengal18 it was stated that
the the power under Articles 72 and 161 of the Constitution can be exercised by the Central and
State Governments, not by the President or Governor on their own. The advice of the appropriate
Government binds the Head of the state.
3.1.6. Furthermore, accepting the argument that Article 74(1) is not mandatory would change the
whole concept of the Executive. It would mean that the President need not have a Prime minister
and Ministers to aid and advice him in the exercise of his functions. In the absence of the Council
of ministers, nobody would be responsible to the Lok Sabha. The President would be able to rule
with the aid of advices till he is impeached. This was ruled by the court in the case of where it
was settled that the word ‘Shall’ in Article 74(1) sought to be read as meaning ‘Shall’ and not
‘may’. Accordingly ‘the president cannot exercise the executive power without the aid and advice
of the Council of ministers’.

It is thereby contended that the President cannot function without a Council of Minister at any
time according to law.

3.2. MANDATORY BINDING OF THE ADVICE

3.2.1. It is to be noted that whatever the formal constitutional provisions may be, in effect,
however, the totality of the executive power of the Centre vests not in the President alone, but in
the President and the Council Of Ministers. The President is the head of the State and only a formal
executive. In all functions vested in him, he acts on the advice of the Ministers.

3.2.2. Further, in the case of R.C. Cooper v. Union of India19, the Supreme Court said, “ Under
the Constitution, the President being the constitutional head, normally acts in all matters including
the promulgation of an ordinance on the advice of the Council of Ministers.

3.2.3. In a Cabinet system the ‘satisfaction’ of the President does not mean his ‘personal
satisfaction’ but the satisfaction of the President in the constitutional sense. i.e, the satisfaction of

18
1994 SCR (1) 37.
19
AIR 1970 SC 564.
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the Council of Ministers on whose aid and advice the President exercises all his powers and
functions, and this stance was taken in the case of B.L. Wadhera v. Union of India20.

3.3 INVOCATION OF SECTION 433-A OF CrPC

3.3.1. Section 433-A of the Criminal Procedure Code deals with restriction of powers of remission
or commutation in certain cases by the President. It states that

“Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life
is imposed on conviction of a person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a person has been commuted under
Section 433 into one of imprisonment for life, such person shall not be released from prison
unless he had served at least fourteen years of imprisonment.”

3.3.2 It was held in the Maru Ram case that under Section 433-A cannot fetter the constitutional
power of the President (Union Council of Ministers) and the Governor of a State (Council of
Ministers of a State) under Articles 72 and 161 respectively to grant full pardon even before the
expiry of the statutory period prescribed under Section 433-A. It was held that Section 433-A
restricts the appropriate government to exercise its powers under Section 432 CrPC but cannot
restrict the constitutional power under Articles 72 and 161.

3.3.3. Furthermore, the supra case gave light on the necessity of aid and advice of the Council of
Ministers towards the Presidential Decisions as it stated that if the President of India is advised by
the Union Council of Ministers to pardon a person whose case falls under Section 433-A the
President cannot refuse to give his approval on the ground that Section 433-A prohibits such a
course. If he refuses he may be committing a breach of Article 74(1) which says that there shall be
a Council of Ministers with the Prime Minister at the head to aid and advise the President who
shall in the exercise of his function act in accordance with such advice. Therefore refusal to follow
the advice (subject of course with the power to send back one for reconsideration) will tantamount
to a direct breach of Article 74 which is a violation of the Constitution, the ground for impeachment
of the President.

20
1996 SCC (2) 594.
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3.3.4 Therefore refusal to follow the advice (subject of course with the power to send back one for
reconsideration) will tantamount to a direct breach of Article 74 which is a violation of the
Constitution, the ground for impeachment of the President.

3. 5. RELIANCE ON THE UK CONSTITUTIONAL PROVISIONS

3.5.1. The counsel for the respondent would like to establish that as this practice of law has been
one that has been incorporated from the British rule, it is to be noted that as per the established
practice, the power to grant pardon in Britain is exercised by the reigning monarch in consultation
with the Secretary of State for the Home Department.

3.5.2 The Supreme Court, in Maru Ram case, laid emphasis on the British practice while arriving
at its conclusions regarding the Indian position. Krishna Iyer, J. stated: “it is fundamental to the
Westminster system that the Cabinet rules and the Queen reigns”. The British practice appears to
have been incorporated in Indusland as well, where a Section Officer in the Ministry of Home
Affairs prepares a note, “which moves up the hierarchy with varying degrees of indifference or
interest”.

3.5.3. In Ram Jawaya v. State of Punjab21, it was stated that our constitution has adopted the
British system of a parliamentary executive, that the President is only a “a formal or constitutional
head of the executive” and that “ the real executive powers are vested in the Ministers or the
Cabinet.”

3.5.4. Additionally, in U.N.R. Rao v. Indira Gandhi22, the Supreme Court emphasized that the
conventions operating in Britain governing the relationship between the Crown and the ministers
are very pertinent to the Induslandian constitution as well, and the formal provisions of the
Induslandian constitution should be read in the light of those conventions.

3.5.5. The counsel for respondents would like to highlight that it is a fundamental principle of the
English constitutional law that Ministers must accept responsibility for every executive act and
these similar . In England, the sovereign never acts on his own responsibility. The power of the

21
AIR 1955 SC 549.
22
1971 AIR 1002.
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sovereign is conditioned by the practical rule that the Crown must find advisers to bear
responsibility for his action. Those advisers must have the confidence of the House of Commons.
This rule of English Constitutional law is incorporated in our Constitution. The Induslandian
Constitution envisages a parliamentary and responsible form of Government at the Centre and in
the States and not in a Presidential form of Government, all of which was stated in the case of
Munnu Raja and Anr v. The State of Madhya Pradesh23.

3.6. VIEW OF THE CONSTITUTION FRAMERS

3.6.1. The Constitution framers never envisaged that the powers and functions vested in the
President should be exercised by him on this own responsibility without the consent of the
ministers.

3.6.2 Pandit Nehru in his report of the committee on Principles of the Union Constitution stated
that the “ power really resided in the Ministry and in the Legislature and not in the President as
such’’.

3.6.3. Father of the Induslandian Constitution Dr. B R Ambedkar was of the view that ‘The
members of the Executive , Legislature and Judicial Branches of the Government know their
functions, their limitations and their duties. The executive is bound to obey the legislature without
any kind of compulsory obligation laid down in the Constitution.’ Moreover he was of the opinion
that the President of Induslandian Union will be generally bound by the advice of his ministers.
He can do nothing contrary to their advice nor can he do anything without their advice.

3.6.4 From the above it is much evident that how the framers of the constitution have stressed upon
the mandatory binding effect of the advice provided by the Council of Ministers on the decisions
of the President.

Thus it is pleaded before this honorable court that the Pardoning power of the President is not
independent of the advice of the council of ministers and it is well within the ambit of the
Constitution.

23
1976 AIR 2199.
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PRAYER

WHEREFORE, in light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed before this Hon’ble Federal Court to:

dismiss the PIL filed by PEOPLE’S FRONT FOR DEMOCRATIC RIGHTS as it isdevoid of
any merits

AND/OR

Pass any other order/orders as this Hon’ble Court deems fit and proper in the circumstances of the
given case and in the light of Justice, Equity and Good Conscience and thus render Justice.

And for this act of kindness and justice, the counsel of petitioners shall be duty bound and forever
pray.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.

Place: , Indusland S/d

Date: March, 2023 Counsel for Respondents

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