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

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 Kerala,
on 27.05.2015]
Source: Legal news India

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