Checks and Balances as the True Meaning of Separation of Powers in Modern

Constitutionalism

1. Separation of Powers is Functional, Not Isolationist

The doctrine of separation of powers, as conceived by Montesquieu in The Spirit of Laws
(1748), aims not at isolation but at preventing concentration of authority. The Supreme Court
in Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549) held that though our
Constitution demarcates functions, it does not strictly divide them; each organ acts as a
constitutional check on the other. Judicial review of executive acts, therefore, is not
interference but a legitimate restraint to maintain balance.

2. Checks and Balances as the Lifeblood of Constitutional Democracy

Checks and balances ensure that power remains accountable. Justice Chandrachud in
Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) affirmed judicial review as part
of the basic structure, implying that review of arbitrary executive action is inherent to
democracy. As A.V. Dicey observed, “Every power must be limited, and every limitation
must have a counterweight.” Hence, judicial scrutiny of clemency sustains, not violates,
separation of powers.

3. Clemency Power Subject to Constitutional and Judicial Control

The pardoning power, though vested in the executive, cannot exist beyond constitutional
bounds. In Epuru Sudhakar v. Govt. of A.P. (2006) 8 SCC 161, the Supreme Court ruled that
clemency may be reviewed if exercised arbitrarily, mala fide, or discriminatorily — echoing
Schick v. Reed (419 U.S. 256, 1974). As held in Marbury v. Madison (1803) and Indira
Nehru Gandhi v. Raj Narain (1975 Supp SCC 1), it is the judiciary’s duty to ensure that
every executive act, including pardon, conforms to constitutional principles.

4. Doctrine of Constitutional Trust and Judicial Oversight

Clemency power is held in trust for the public, not as a personal prerogative. In State of Bihar
v. D.N. Ganguly (AIR 1958 SC 1018), it was reaffirmed that all public power must be
exercised in good faith for its intended purpose. Judicial intervention, therefore, restores
equilibrium when the trust is breached. As Kehar Singh v. Union of India (1989) 1 SCC 204
and R v. Secretary of State, ex parte Bentley [1994] QB 349 demonstrate, courts intervene
where pardons are politically motivated or irrational — ensuring clemency serves justice, not
expediency.

5. Constitutional Supremacy Anchored in Global and Domestic Practice

Separation of powers ultimately protects the supremacy of the Constitution, not the
supremacy of any organ. Justice Khanna in Kesavananda Bharati aptly noted, “No organ of
the State is sovereign; the Constitution is.” Judicial checks on clemency, recognised globally
— from President of South Africa v. Hugo (1997 (4) SA 1 (CC)) to Ohio Adult Parole
Authority v. Woodard (523 U.S. 272, 1998) — reaffirm that executive mercy must operate
within constitutional limits. Thus, checks and balances transform governance from rule by
men into rule under law.
Functional Distinction Between Judicial Review of ‘Decision-Making Process’
and Substitution of ‘Decision Itself’

1. Judicial Review Safeguards the Legality of the Process, Not the Merits of the Decision
Judicial review examines how the decision was made, not what decision was reached. As
Lord Diplock stated in Council of Civil Service Unions v. Minister for the Civil Service
(GCHQ Case) [1985] AC 374, courts review illegality, irrationality, and procedural
impropriety — they “do not substitute their own decision.” The NGO, therefore, only
challenges the tainted process through which clemency was granted, not who deserved
mercy. This distinction ensures legality without breaching executive autonomy.

2. Clemency Power Is Constitutionally Limited — Review Targets Mala Fides, Not

Discretion
Though wide, the President’s pardoning power is subject to constitutional discipline. In
Kehar Singh v. Union of India (1989) 1 SCC 204 and Epuru Sudhakar v. Govt. of A.P. (2006)
8 SCC 161, the Supreme Court affirmed that courts cannot assess the merits of clemency but
can strike it down if based on “wholly irrelevant or mala fide considerations.” Here,
ministerial interference and political lobbying reveal precisely such extraneous factors.
Judicial review invalidates a polluted process without substituting the decision itself.

3. Doctrine of Ultra Vires and Independent Satisfaction — Safeguards Against

Mechanical or Political Clemency
Administrative law dictates that power must be exercised for its lawful purpose (Padfield v.
Minister of Agriculture [1968] AC 997). Clemency exists to serve justice and public welfare,
not political appeasement. In Maru Ram v. Union of India (1980) 1 SCC 107, the Court
warned that presidential satisfaction cannot be mechanical or under pressure. When the
President yields to political influence, the exercise becomes ultra vires and constitutionally
void — inviting judicial correction of process, not outcome.

4. Review of Process as a Constitutional Duty — Protecting Fairness and Fundamental

Rights
Process review ensures that executive discretion aligns with Articles 14 and 21. In Maneka
Gandhi v. Union of India (1978) 1 SCC 248, the Court held that all state action must be “just,
fair, and reasonable.” A pardon granted under political pressure violates these principles.
Comparative jurisprudence — Ohio Adult Parole Authority v. Woodard (523 U.S. 272, 1998)
and Special Reference Re: Criminal Code [1987] 1 S.C.R. 309 — confirms that reviewing
procedural fairness in clemency is consistent with separation of powers, not contrary to it.

5. Process Review Strengthens Constitutional Morality and Executive Legitimacy

Judicial scrutiny over process preserves the purity of executive power. As Prof. Paul Craig
notes (Administrative Law, 9th ed., 2021), discretionary legitimacy rests on adherence to
constitutional limits. If clemency is influenced by biased ministers, it offends the maxim
nemo debet esse judex in propria causa. In State of Punjab v. Gurdial Singh (1980) 2 SCC
471, the Court held that state discretion must not be “arbitrary, capricious or in bad faith.”
Striking down a tainted pardon therefore restores constitutional morality and public faith
without eroding executive dignity.
Judicial Review of Pardon: A Settled Constitutional Position, Not an Invasion
into Executive Domain

1. Limited Government Ensures That No Power Is Beyond Judicial Scrutiny

The doctrine of limited government mandates that even the President’s power under Article
72 and the Governor’s under Article 161 must operate within constitutional limits. As held in
Maru Ram v. Union of India (1980) 1 SCC 107, “the power to pardon is subject to judicial
review when exercised arbitrarily, mala fide, or in disregard of constitutionalism.” The
ancient maxim Quod principi placuit legis habet vigorem applies only within those limits.
Modern constitutionalism transforms clemency from prerogative into duty (Biddle v.
Perovich, 274 U.S. 480 (1927)) — a public function answerable to constitutional principles
of fairness, non-arbitrariness, and good faith.

2. Judicial Review of Clemency Is Settled by an Unbroken Line of Precedent

Judicial scrutiny of pardon powers is now a settled constitutional doctrine. In Kehar Singh v.
Union of India (1989) 1 SCC 204, the Court held that while the President’s satisfaction
cannot be substituted, the process can be reviewed. Epuru Sudhakar v. Govt. of A.P. (2006) 8
SCC 161, Narayan Dutt v. State of Punjab (2011) 4 SCC 353, and Swaran Singh v. State of
U.P. (1998) 4 SCC 75* struck down clemency acts tainted by mala fides and political
motives. Shatrughan Chauhan v. Union of India (2014) 3 SCC 1* and State of Haryana v.
Jagdish (2010) 4 SCC 216* reaffirmed that delay, bias, or disregard of relevant materials
vitiate clemency. This consistent judicial pattern confirms that mercy, when divorced from
legality, ceases to be constitutional.

3. Review Polices the Process, Not the Decision — A Jurisprudentially Settled Divide
As explained in Kehar Singh and Epuru Sudhakar, the judiciary reviews the legality of the
process, not the merits of the decision. The maxim Fiat justitia ruat caelum ensures justice
within constitutional boundaries. Articles 13, 14, and 21 demand that clemency be exercised
justly, fairly, and without extraneous influence. As H.M. Seervai notes (Constitutional Law of
India, Vol. II, p. 2193), “No constitutional power is absolute.” Judicial intervention therefore
“polices” the executive’s conduct without usurping its function — a necessary check that
sustains, not weakens, separation of powers.

4. Judicial Review Is Intrinsic to the Basic Structure and Comparative

Constitutionalism
Judicial review being part of the basic structure (L. Chandra Kumar v. Union of India, (1997)
3 SCC 261), no constitutional power — not even clemency — can exist beyond it.
Comparative practice affirms the same restraint: United States v. Klein (80 U.S. 128 (1871))
recognised judicial interpretation of executive pardons; the U.K. in R v. Secretary of State, ex
parte Bentley [1994] QB 349 held that prerogative mercy is reviewable if irrational or
improper; and the Canadian Special Reference re: Power of Pardon [1947] SCR 460* upheld
review when clemency conflicts with constitutional values. These precedents reflect a shared
democratic consensus that procedural fairness is judicially enforceable.

5. Judicial Review Preserves Rule of Law, Not Erode Executive Dignity

Each time this Hon’ble Court examined a clemency petition — from Epuru Sudhakar to
Shatrughan Chauhan — it reaffirmed that such review harmonises with separation of powers.
Clemency cannot operate as a “parallel justice system” immune from scrutiny. As Lord
Denning warned in Freedom Under the Law (1949, p. 64), “If mercy were to become a
weapon to defeat justice, the Rule of Law would perish.” Judicial review thus acts as a
constitutional disinfectant — ensuring that pardon remains an instrument of justice, not
political convenience, and that constitutional supremacy prevails over organ supremacy.

Judicial Pronouncements which have settled Judicial Review of pardoning powers as

essential without being fallible against the doctrine of separation of powers:

1. The foundation of judicial review lies in the subject matter, not the source of power.
1.1. The controlling factor in determining whether a prerogative power such as pardon is
reviewable is not its constitutional source but its subject matter. As held in Union of India v.
V. Sriharan Murugan & Ors., (2016) 7 SCC 1, para 66:

“The controlling factor in determining whether the exercise of prerogative power is subject to
judicial review is not its source but its subject-matter. It can no longer be said that prerogative
power is ipso facto immune from judicial review.”
1.2. Thus, this Hon’ble Court retains jurisdiction to ensure that the substance of the decision
conforms to constitutional morality, fairness, and the rule of law. Any contrary view would
immunize abuse and erode accountability in the exercise of executive prerogatives.

2. The Rule of Law is supreme; every prerogative is subject to legality and fairness.
2.1. The principle of legality undergirds all constitutional functions. As reaffirmed in
Sriharan (supra, para 66):

“Every prerogative has to be subject to the rule of law. That rule cannot be compromised on
the grounds of political expediency.”
2.2. Hence, even the pardoning power — though wide — must be exercised within the
boundaries of fairness, non-discrimination, and constitutional propriety. This Hon’ble Court,
as the guardian of the Rule of Law, must intervene when such power is tainted by
arbitrariness or political bias.

3. Judicial review is the constitutional safeguard against abuse of mercy powers.

3.1. In Epuru Sudhakar v. Govt. of A.P., 2006 INSC 695, para 22, it was held:

“It is fairly well settled that the exercise or non-exercise of pardon power by the President or
Governor, as the case may be, is not immune from judicial review.”
3.2. The proposition that such review violates separation of powers is misplaced. The review
is confined to examining legality, mala fides, or arbitrariness — not policy wisdom. Judicial
review thus strengthens, rather than diminishes, constitutional balance.

4. Separation of powers is preserved, not violated, by judicial review.

4.1. In Kehar Singh v. Union of India, (1989) 1 SCC 204, cited in Epuru Sudhakar (para 26),
the Court held that the President’s power under Article 72 “falls squarely within the judicial
domain and can be examined by way of judicial review.”
4.2. The doctrine of separation of powers envisages mutual restraint, not mutual immunity.
Judicial scrutiny of clemency ensures checks and balances — that each organ functions
within its constitutional limits without transgressing into illegality.

5. The prerogative of mercy does not confer unreviewable discretion.

5.1. As summarized from Sir William Wade, Administrative Law (9th Edn.), quoted in Epuru
Sudhakar (para 20):

“It may be said that the royal prerogative does not per se confer unreviewable discretion…
the arbitrary power claimed by the Crown has now been made subject to judicial review
along with various other non-legal powers.”
5.2. This principle establishes that even mercy powers, though discretionary, are amenable to
judicial scrutiny to prevent arbitrariness, ensuring democratic accountability consistent with
constitutional morality.

6. The scope of review is procedural, not substitutive.

6.1. As held in Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622, paras
26–28:

“If the decision-making body is influenced by considerations which ought not to influence it,
or fails to take into account matters which it ought to take into account, the Court will
interfere.”
6.2. Judicial review concerns the process of decision-making, not the merits of the decision.
The President’s satisfaction must be based on relevant, rational, and non-extraneous grounds
— a standard enforceable by this Hon’ble Court without breaching separation of powers.

7. The doctrine of fairness and duty to give reasons underpins judicial scrutiny.
7.1. As noted in U.P. Financial Corporation v. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299,
para 11, the doctrine of fairness exists “to ensure the rule of law and to prevent failure of
justice.”
7.2. In Epuru Sudhakar (paras 40–43), drawing from Padfield v. Minister of Agriculture,
(1968 AC 997), the Court observed:

“If he does not give any reason for his decision, it may be… that a court may be at liberty to
come to the conclusion that he had no good reason for reaching that conclusion.”
7.3. Absence of reasoning or concealment of material invites judicial intervention;
transparency is the lifeblood of fair governance.

8. The President’s power is not absolute but constitutionally conditioned.

8.1. In Sriharan (supra, para 66), it was emphasized that the President “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 future.”
8.2. The mercy power is thus a constitutional trust, not a personal prerogative. Judicial review
ensures that this trust is exercised with justice, fairness, and non-arbitrariness.
8.3. Sriharan (para 66) further mandates that “considerations of religion, caste or political
loyalty are irrelevant and fraught with discrimination.” Review thus functions as a bulwark
against political favoritism or societal inequity.

9. Judicial review corrects illegality, fraud, and manifest error in clemency.

9.1. In Epuru Sudhakar (paras 49–50), it was held:

“A pardon procured by false and fraudulent representations or by intentional suppression of

the truth is void, even though the person pardoned had no part in perpetrating the fraud.”
9.2. Similarly, if the pardon has been obtained on the basis of manifest mistake, “the same
can be rescinded or cancelled.” (Epuru Sudhakar, para 50).
9.3. In R. v. Secy. of State for Home Deptt., ex p Bentley (1993), the Home Secretary’s refusal
to grant a posthumous pardon was quashed for legal error, confirming that mercy decisions
must conform to public law principles and remain open to judicial challenge.

10. Judicial review ensures consistency, proportionality, and accountability.

10.1. Sriharan (para 66) requires the President to consider the precedent his decision sets.
This reinforces consistency and proportionality in mercy decisions.
10.2. The Burt v. Governor-General of New Zealand (1992) Court of Appeal decision
affirmed that the prerogative of mercy, though executive, is subject to curial challenge
“insofar as issues arise of a kind with which the courts are competent to deal.”
10.3. Judicial review thus upholds the rule of law, protects victims’ interests, and prevents
isolated acts of clemency that undermine justice or societal balance.

11. Review reinforces constitutional morality without obstructing executive autonomy.

11.1. Mansukhlal Vithaldas (paras 28–30) clarified that discretion does not immunize
executive action from review:

“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.”
11.2. Judicial review, therefore, maintains a balance between autonomy and accountability. It
ensures legality and rationality without substituting judicial opinion for executive wisdom,
respecting the flexibility inherent in mercy powers (Epuru Sudhakar, para 68).
11.3. As per Epuru Sudhakar (para 20), quoting Lord Denning:
“Where such powers are exercised for governmental purposes it is arguable that the courts
should be prepared to intervene, as a matter of public ethics, as a safeguard against abuse.”
12. Judicial review vindicates the Constitution by aligning executive clemency with
fairness and the rule of law.
12.1. The ethos of “Government according to law,” as articulated in Sriharan (para 66),
demands that the prerogative be exercised consistently with fairness and certainty.
12.2. Review by this Hon’ble Court ensures that the President’s discretion reflects
constitutional morality, proportionality, and justice, thereby reinforcing public faith in
governance.
12.3. As summarized in Epuru Sudhakar (para 68):

“The constitutional justification for judicial review and the vindication of the Rule of Law
remain constant, even for discretionary pardon powers.”
12.4. Thus, judicial review operationalizes the true spirit of separation of powers — enforcing
disciplined discretion, preventing arbitrary mercy, and preserving the supremacy of the
Constitution over all forms of authority.