Judicially Reviewing the President's Prerogative of Mercy

BANGLADESH RESEARCH PUBLICATIONS JOURNALISSN: 1998-2003, Volume: 7, Issue: 3, Page: 257-266, September - October, 2012JUDICIALLY REVIEWING THE PRESIDENT’S PREROGATIVE OFMERCY: A COMPARATIVE STUDY*Md. Minhazul Islam 1Md. Minhazul Islam (2012). Judicially Reviewing the President’s Prerogative of Mercy: A ComparativeStudy. Bangladesh Res. Pub. J. 7(3): 257-266. Retrieve fromhttp://www.bdresearchpublications.com/admin/journal/upload/09343/09343.pdfAbstractThe prerogative of mercy to persons convicted of criminal offences is anancient concept and this power traditionally was vested in heads of states.Every civilized country in its constitution or in its laws provides for a power togrant pardon or remission of sentences, though the means or conditions ofgrant of pardon vary from country to country. It is imperative that thispardoning power should be exercised only to prevent miscarriage ofjustice. The object of conferring this judicial power on the President is tocorrect possible judicial errors, as no human system of judicialadministration can be free from imperfections. Exercise of the presidentialpower to grant clemency over the last couple of years has led to aperception of the misuse and abuse of such extraordinary constitutionalauthority. The way of exercising presidential clemency for the benefit of theruling party men also appears to be a severe blow to the rule of law inBangladesh.Keywords: Prerogative, Mercy, Presidential clemency, Judicial review, Fugitive.IntroductionFrom ancient times, the power of the executive to suspend the operationof the justice system by extending clemency to an accused or convicted criminalhas been a fundamental part of the criminal justice systems. Now every civilizedcountry in its constitution or in its laws provides for a power to grant pardon orremission of sentence. The philosophy underlying the pardon power is that "everycivilized country recognizes, and has therefore provided for, the pardoning powerto be exercised as an act of grace and humanity in proper cases. Without such apower of clemency, to be exercised by some department or functionary of agovernment, a country would be most imperfect and deficient in its politicalmorality, and in that attribute of Deity whose judgments are always temperedwith mercy." 2 The classic exposition of the law relating to pardon is to be found inEx parte Philip Grossman Case 3 Chief Justice Taft stated:“Executive clemency exists to afford relief from undue harshness or evidentmistake in the operation or the enforcement of the criminal law. Theadministration of justice by the courts is not necessarily always wise orcertainly considerate of circumstances which may properly mitigate guilt.To afford a remedy, it has always been thought essential in populargovernments, as well as in monarchies, to vest in some other authority thanthe courts power to ameliorate or avoid particular criminal judgments.”* Corresponding author’s Email: minhaz.pu@gmail.comLecturer, Department of Law, BGC Trust University Bangladesh.2 See 59 American Jurisprudence 2d (1964), page 53 267 U.S. 87 (1925)

Md. Minhazul IslamThis article attempts to make a comparative study regarding Presidentialclemency exercised in Bangladesh and India and to see whether there is anyscope for judicial review regarding the exercise of prerogative power of mercy.The Nature and Origins of ClemencyThe clemency power or prerogative power of mercy traditionally was usedto entrench regimes by "endearing the sovereign to his subjects," 4 rewardingpolitical supporters, and even lining the executive's coffers. 5 The power of pardonwas historically vested in the British monarch. In common law, a pardon was anact of mercy whereby the king “forgave any crime, offence, punishment,execution, right, title, debt, or duty.” This power was absolute, unfettered and notsubject to any judicial scrutiny. 6 From this source, it came to find a place in theConstitutions of Bangladesh, India and the USA as well as the constitutionalstructure of England. However, it could hardly survive in its unrestrained nature inthe democratic systems of these states. Over a period of time, it became dilutedin the U.K. and U.S.A. to a limited extent through the exercise of judicial scrutiny.But its greatest dilution has occurred in India.History of the Power of Pardon in Different JurisdictionsEnglandIn his Commentaries, Blackstone said that the Crown's use of the pardonpower to ensure that justice was administered with mercy was one of the greatadvantages of monarchy over any other kind of government, because itsoftened the rigors of the general law. 7Although Blackstone is undoubtedly correct in asserting that clemency inEngland often served the salutary purpose of mitigating a system of criminaljustice, which was harsh and inflexible, the lack of meaningful checks on theprerogative resulted in frequent abuses. For instance, felons were typicallygranted a pardon conditioned on their agreeing to travel to the colonies andwork on the plantations. 8 The clemency power was also used to exact testimonyfrom accomplices that would incriminate co-defendants, a practice thatbecame a "mainstay" of the English criminal justice system in the eighteenth andnineteenth centuries. 9Current Position in EnglandAt present, the monarch exercises the power on the advice of the HomeSecretary. The Home Secretary’s decision can in some situations be challengedby judicial review. 10 In R v Secretary of State for the Home Department ex parteBentley, 11 the Court held that the formulation of policy for the grant of a freepardon was not justiciable. But a failure to recognize that the prerogative ofmercy was capable of being exercised in many different circumstances andtherefore failure to consider the form of pardon which might be appropriate tomeet the present case was reviewable.Thus, it may be concluded that in the UK judicial review of the power ofpardon is extremely restricted in scope, because the British constitutional structure2584 4 Blackstone, W. Commentaries on the Laws of England (1769) , Ch. 31.5 Moore, K. Pardons: Justice, Mercy, and the Public Interest 18-19 (1989).6 Coke, Edward. The Third Part of the Institutes of the Laws of England. 4th ed. London (1669)7 Supra Note 38 L. Sebba, Clemency in Perspective, in Criminology in Perspective: Essays in Honor of Israel Drapkin 221, 225-28 (F.Landau & L. Sebba eds. 1977)9 Ibid10 Ibid11 1993 (4) All E.R. 442http://www.bdresearchpublications.com/journal/

Judicially Reviewing the President’s Prerogative of Mercyrecognizes the supremacy of parliament and provides an altogether narrowerscope for judicial review.Position in the USAArticle II of the US Constitution grants the President of the United States, the“Power to Grant Reprieves and Pardons for offenses against the United States,except in cases of Impeachment.” 12The Court has been cautious in its interpretation of the pardoning powerwhere conditions have been imposed in grant of pardons, which conflicted withthe constitutional rights of the persons who were pardoned. In Hoffa v Saxbe, 13 acondition imposed on a pardon was challenged as unconstitutional. The DistrictCourt held that the “framework of the constitutional system” establishes limitsbeyond which the President may not go in imposing and subsequently enforcingconditions on pardons. In Burdick v. United States 14 , the Court upheld anoffender's right to refuse a presidential pardon granted in order to compel him totestify in a case, which conflicted with his right against self-incrimination.The lack of any standards or checks on the exercise of the clemencypower has not helped the American system of justice in this case. Commentatorshave noted that unbridled discretion in pardoning threatens to permit thePresident to shield himself and his subordinates from criminal prosecution and toundermine the essential functions of coordinate branches of government. 15Indeed, President Richard Nixon's advisors had such confidence in thescope of the presidential pardoning power that they seriously explored thepossibility of the President pardoning himself. 16 Governors (and, many wouldcontend, Presidents) have regularly exercised the clemency power in ways thatare clearly at odds with society's interests, including granting or denying pardonsto convicted murderers solely because of campaign promises made tosupporters. 17 One governor was even impeached and removed for particularlyblatant abuses of the pardoning power. 18Misuse of Mercy Power in BangladeshIn recent times, we have witnessed a good number of decisions, where theexercise of the prerogative power of mercy by the President have been called toquestion by the media and people at large. The facts of those decisions arediscussed below in brief:Fact 1: On January 13, 2005, President Dr. Iajuddin Ahmed granted pardonto a double murder convict Mohiuuddin Zintu, founder President of BNP Swedenchapter. He was accused of murder with others of two businessmen in Demraarea. A Martial Law Court tried the case in 1982 and convicted Zintu (in absentia)and other two. They were awarded capital punishment. Two convicted prisonerswere executed, but Jhintu escaped the sentence because he at that timeabsconded in abroad. According to the press reports, Jhintu maintained closeliaison with the incumbents of Home Ministry and Law Ministry and managed tohave them channeled the process for presidential clemency. After having theprocess ready, he came to Bangladesh on January 3 and surrendered before the25912 Article II (Section 2): The President shall have Power to grant Reprieves and Pardons for Offences against theUnited States, except in Cases of Impeachment.13 378 F. Supp. 1221 (D.D.C. 1974).14 236 U.S. 79 (1915).15 Duker, The President's Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 525 (1977).16 Pardon of Richard M. Nixon and Related Matters: Hearings Before the Subcommittee on Criminal Justice of theHouse Comm. on the Judiciary, 93d Cong., 2d Sess. 154 (1974)17 Barnett, The Grounds of Pardon, 17 Journal of Criminal Law & Criminology (1926)18 3 U.S. Dep't of Justice, The Attorney General's Survey of Release Procedures 150-53 (1939) (describing theimpeachment of Oklahoma Governor J.C. Walton for selling pardons).http://www.bdresearchpublications.com/journal/

Md. Minhazul IslamCourt of the Chief Metropolitan Magistrate of Dhaka and got presidentialamnesty on January 13. 19Fact 2: In 2009, the incumbent President Zillur Rahman granted mercy toShahadab Akbar, son of the deputy leader in parliament Syeda SajedaChowdhury, who was sentenced to 18 years' imprisonment and fined Tk 1.6 crorein absentia in four cases filed by the Anti-Corruption Commission and the NationalBoard of Revenue during the tenure of the last caretaker government. 20 Withoutsurrendering to the court, he got his sentences and fines pardoned.Fact 3: In another case in connection with the killing of the Natore Jubo Dalleader Sabbir Ahmed Gama, the president pardoned 20 death row convicts in2010. 21 The fact of the case, in brief, is that the Speedy Trial Tribunal, Dhakaconvicted and sentenced 21 persons to death for killing the Jubo Dal leaderSabbir Hossain Gama, also nephew of former BNP Deputy Minister Ruhul QuddusTalukdar Dulu, at Ramsharkazipur Amtali Bazar under Naldanga Upazila of Natoredistrict on February 7, 2004. As reported in newspapers, prior to the presidentialpardon, the 20 convicts filed appeal with the High Court Division against theirdeath sentence. The 20 convicts withdrew their appeal petition from the HighCourt Division when they were assured from responsible quarters of the rulingAwami League to grant them presidential pardon, and prayed for presidentialclemency. On September 6, President Zillur Rahman granted them pardon. 22Fact 4: Recently, President Zillur Rahman pardoned Biplob, son of AbuTaher, an Awami League leader in the Advocate Nurul Islam murder case, inwhich he was given death sentence. 23 In February 2012, the president hasgranted mercy to the convicted killer AHM Biplob for the second time. This time,Biplob's life sentence in each of two murder cases has been reduced to 10-yearimprisonment. 24In the above mentioned cases, considering political affiliation to the rulingparty, President granted mercy to the applicants, which is against the spirit of theconstitution and a clear violation of the rule of law. The Indian Supreme Court inKehar Singh’s case 25 unequivocally rejected the contention of the AttorneyGeneral that the power of pardon can be exercised for political consideration. InBangladesh, it is not settled, whether the exercise of prerogative power by thePresident is subject to judicial review or not. Recently a Division Bench of HighCourt Division held that in exercising the power of mercy the President misusedit. 26 Citing examples of various cases, the Bench said the court had the jurisdictionto examine whether the President had misused his constitutional power.In the case of Ehthesamuddin Ahmed Alias Iqbal vs Bangladesh, it washeld that “power to suspend or remit sentence is within the absolute discretion ofthe Government or the President and the Court cannot give any direction in thisregard.” 2726019 http://www.thedailystar.net/law/2005/08/01/, Last accessed on 12 June 201220 The Daily Star, April 26, 201221 M. Abdul Latif Mondal ‘Presidential prerogative to grant clemency’. The Daily Star, September 24, 201022 Ibid23 Shakhawat Liton ‘Controversies can be costly’. The Daily Star, February 28, 201224 The Daily Star, February 27, 201225 Kehar Singh vs. Union of India, 1989(1) SCC 20426 Sarwar Kamal vs. State, 64 DLR (2012) 33127 1 BLD (1981)http://www.bdresearchpublications.com/journal/

Judicially Reviewing the President’s Prerogative of MercyMercy Power in the Constitution of BangladeshArticle 49 of our Constitution confers mercy power on the President. 28 ThePresident can exercise the power in the following ways:-a. Pardon i.e. to completely set free the convict off his conviction.b. Reprieves i.e., a temporary suspension of the punishment fixed by thelaw,c. Respites, i.e. postponement to the future the execution of a sentence,d. Commutation i.e. changing the sentence to one of a different sort thanthat originally proposed.e. Remission i.e. reducing the amount of the punishment withoutchanging the character of the punishment.f. Suspension i.e. to stop the execution temporarily.Apart from constitutional provisions, the government may suspend, remit orcommute the sentence of a person under the Code of Criminal Procedure of1898. 29 According to our Constitution, 30 the President is to exercise the prerogativepower of mercy in consultation with or in accordance with the advice of thePrime Minister through the Ministry of Law and Parliamentary Affairs. 31 Rule 14 ofthe Rules of Business of 1996 states that the Ministry of Law, Justice andParliamentary Affairs shall be consulted before tendering advice on a mercypetition against an order of death sentence and pardon, reprieve, respite,remission, suspension or commutation of any sentence. 32 Now it is clear that thePresident is to act according to the wish of the government and he cannot applyhis individual discretion. The President cannot act independently in exercising theprerogative power of mercy. The President is to act simply according to the PrimeMinister’s direction except in the case of appointment of Chief Justice.It is clear that in the above mentioned cases, the President acted as thegovernment directed him. Though, it is claimed that the government followed theRules of Business of 1996, in fact according to Article 48 (3) there is no scope in ourconstitution for the exercise of discretion by the President while granting pardon. Itshows that there is scope of abuse or arbitrary exercise of prerogative power ofmercy. Article 49 is to be amended by stating the grounds or conditions; that is,when the tender of pardon can be exercised in order to prevent miscarriage ofjustice in the name of mercy by the President.If the President is empowered to exercise this power independently withoutany advice from the Prime Minister, does it ensure that the President will exercisethis power rationally? The answer is ‘no’. In Bangladesh, the President is electedby the Members of Parliament. The person nominated by the ruling party alwaysbecomes the President. So, the President is a partisan person. If we rememberBangladeshi politics, we can’t expect that a partisan person will exercise this26128 Article 49 reads: The President shall have power to grant pardons, reprieves and respites and to remit, suspendor commute any sentence passed by any court, tribunal or other authority.29 Section 401 & 402 of the Code of criminal Procedure, 1898.30 Article 48 (3) In the exercise of all his functions, save only that of appointing the Prime Minister pursuant toclause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act inaccordance with the advice of the Prime Minister: Provided that the question whether any, and if so what,advice has been tendered by the Prime Minister to the President shall not be enquired into in any court.31 Rule 14 of the Rules of Business of 199632The Rules of Business of 1996, Rule 14: Consultation with Ministry of Law, Justice and Parliamentary Affairs - (1)The Ministry of Law, Justice and Parliamentary Affairs shall be consulted:before tendering advice on a mercy petition against an order of death sentence and pardon, reprieve,respite, remission, suspension or commutation of any sentence.http://www.bdresearchpublications.com/journal/

Md. Minhazul Islampower rationally without discrimination, without favouring any person of his partyof which he was a member.No Guideline to Exercise Prerogative Power of MercyArticle 49 of the Constitution that empowers the President to grant “mercy”does not explain the situations under which the President may exercise hisprerogative power. It is imperative that this power should be exercised judiciouslyand should be offered to one with the highest degree of remorse in addition toservice to the nation or mankind. The commutation of death penalty of Col.Taher, a wounded and decorated hero of our war of national liberation, couldhave been an ideal case to follow the letter and spirit of the constitutionalprerogative power of mercy, particularly because the sentence was awarded bya Martial Law Court 33On the government's powers under Section 401 of the Cr.P.C. to suspendand remit sentences of any convict, the High Court Division in Sarwar Kamal vs.State 34 case held that “no rules or standard guidelines are there for thegovernment to exercise this power. Thus, we are of the view that for fair, properand bonafide exercise of the above power the government may frame rule andguideline or even amend the Code, as has been done in one of our neighbouringcountries."The rationale of the pardon power has been felicitously enunciated byJustice Holmes of the United States Supreme Court in the case of Biddle v.Perovich 35 in these words: “A pardon in our days is not a private act of gracefrom an individual happening to possess power. It is a part of the constitutionalscheme. When granted, it is the determination of the ultimate authority that thepublic welfare will be better served by inflicting less than what the judgmentfixed.”When pardon is granted to a convicted person, it may create a sense ofinjustice in the mind of the victims or family members of the victims. That is why, atthe time of granting pardon, the President is to examine many factors specially,because this power is given to use in extraordinary cases where there is no otheroption open to the convicted person or to his family.Mercy to a Convicted Fugitive and a Bold Step of the Higher Judiciary ofBangladeshA Division Bench of the High Court Division expressed that the powers ofthe president and the government to pardon, suspend or remit sentences of anyconvict should be exercised fairly and on unbiased relevant principles. If a fugitivefrom law is given pardon knowing his status then the exercise of power underArticle 49 of the Constitution or section 401 (1) of the Code certainly be arbitrary,malafide, unreasonable, irrational and improper and such exercise of power isagainst the principle of the rule of law and an abuse of power. 36The judgment came in response to the petition by Sarwar Kamal, whochallenged a trial court's warrant for his arrest in Cox's Bazar in 1997, four yearsafter he was given presidential clemency while on the run.Kamal, now 58, was jailed by a trial court in 1989 and the High CourtDivision in 1992 in a case for beating a man to death. The case was filed withTeknaf Police Station in Cox's Bazar in July 1981.26233 http://www.thedailystar.net/2005/08/14/d508141502118.htm34 Supra Note 25, p. 34235 71 L. Ed. 1161 at 116336Supra Note 25, p. 339http://www.bdresearchpublications.com/journal/

Judicially Reviewing the President’s Prerogative of MercyFollowing an appeal against the trial court's verdict, the High Court Divisiongranted him bail till the disposal of the appeal in August 1991. Subsequently, hewas freed from jail.However, in September 1992, the High Court Division in its judgment on theappeal petition sentenced Kamal to eight years' imprisonment and ordered himto surrender before the trial court. Meanwhile, Kamal's wife in 1991 submitted amercy petition to the then president Abdur Rahman Biswas, who pardoned Kamalin April 1993. Seven months before the clemency, a Bench of the High CourtDivision had ordered Kamal to surrender before the trial court, but he did notcomply with the order.In their judgment, the Judges mentioned that the court can not direct thePresident and the government on exercising their powers according to Article 49of the Constitution and Section 401 of the Code of Criminal Procedure (CrPC). Butthe action of the President or the Government, as the case may be, must bebased on some rational, reasonable, fair and relevant principle which is nondiscriminatoryand it must not be guided by any extraneous or irrelevantconsiderations. 37The Court further held that public power, including constitutional power,shall never be exercisable arbitrarily or malafide and ordinarily and Guidelines forfair and equal execution are guarantors of the valid play of power and when themode of power of exercising a valid power is improper or unreasonable, there isan abuse of power. 38The Court observed that when the court issues an arrest warrant for aperson or starts the process in this regard, the accused must surrender before thecourt if he wants to defend himself against the move. Any fugitive on the runwould not have the right to get any remedy unless he surrenders before thecourt. 39Prerogative Power of Mercy in IndiaArticles 72 40 and 161 41 of the Indian Constitution confer the prerogativepower of mercy on the President and the Governor, respectively. The IndianConstitution of 1949 specifically points out where power of the President can beexercised. The President shall have the power to grant pardon in certain cases asenumerated in the said articles. It is settled law that this power is to be exercisedin accordance with the ministerial advice and not by exercise of the President’sor the Governor’s individual discretion. Though, the President or Governor isrequired to grant pardon in accordance with the ministerial advice, but there aresome grounds upon which this power can be exercised by the President orGovernor.In India, judicial decisions, law books, reports of the Law Commission,academic writings and statements of administrators and people in public lifereveal that the following considerations have been regarded as relevant andlegitimate for the exercise of the power of pardon. Some of the illustrativeconsiderations are:26337 Supra Note 25, p. 33738 Ibid39 Ibid, p.3640 Article 72 reads: “(1) The President shall have the power to grant pardons, reprieves, respites or remissions ofpunishment or to suspend, remit or commute the sentence of any person convicted of any offence—(a) in allcases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment orsentence is for an offence against any law relating to a matter to which the executive power of the Unionextends; (c) in all cases where the sentence is a sentence of death.”41 Article 161 reads: The Governor of a State shall have the power to grant pardons, reprieves, respites orremissions of punishment or to suspend, remit or commute the sentence of any person convicted of anyoffence against any law relating to a matter to which the executive power of the State extends.http://www.bdresearchpublications.com/journal/

Md. Minhazul Islama) interest of society and the convict;b) the period of imprisonment undergone and the remaining period;c) seriousness and relative recentness of the offence;d) the age of the prisoner and the reasonable expectation of his longevity;e) the health of the prisoner;f) good prison record;g) post conviction conduct, character and reputation;h) remorse and atonement;i) deference to public opinion.In Epruru Sudhakar & Another. Vs. Government of Andhra Pradesh & Ors.Case 42 the Amicus Curiae Soli Sorabajee former Attorney General of Indiasubmitted before the Supreme Court of India that having regard to variousinstances of arbitrary exercise of power of pardon it is desirable that this Hon’bleCourt should lay down broad principles or criteria for exercise or non-exercise ofpardon power. Though the circumstances and the criteria for exercise or nonexerciseof pardon power may be of infinite variety, one principle is well settledand admits of no doubt or debate, namely, that the power of pardon should beexercised on public considerations alone. An undue exercise of the pardonpower is greatly to be deplored. It is a blow at law and order and is an additionalhardship upon society in its irrepressible conflict with crime and criminals.Judicial Review of the Prerogative Power of Marcy: Lessons to Learn From IndiaIn India, it is well settled that the exercise or non-exercise of pardon powerby the President or Governor is not immune from judicial review. The power ofpardon under Article 72 was reviewed in the two landmark cases of Maru Ram vUnion of India 43 and Kehar Singh v Union of India 44 .In Maru Ram 45 the Court while deciding upon the validity of 433A of theCode of Criminal Procedure, examined the power of pardon under Article 72. Itobserved:“Pardon, using this expression in the amplest connotation, ordains fairexercise, as we have indicated above. Political vendetta or party favoritismcannot but be interlopers in this area. The order which is the product ofextraneous or mala fide factors will vitiate the exercise….For example, if the ChiefMinister of a State releases everyone in the prisons in his State on his birthday orbecause a son has been born to him, it will be an outrage on the Constitution tolet such madness survive.”In Kehar Singh case, the Court considered the nature of the President’spower under Article 72 while dealing with a petition challenging the President’srejection of a mercy petition by Indira Gandhi’s assassin, Kehar Singh. The Courtexplicitly held, “Article 72 falls squarely within the judicial domain and can beexamined by the court by way of judicial review.” 4626442 Writ Petition (Crl.) 284-85 of 2005, Decided on 11/10/200643 Maru Ram v Union of India 1981 (1) SCC 10744 Supra Note 2445 Supra Note 4246 Supra Note 24http://www.bdresearchpublications.com/journal/

Judicially Reviewing the President’s Prerogative of MercyHowever, the Court qualified this finding by holding that the order of thePresident cannot be subjected to judicial review on its merits except within thestrict limitations delineated in Maru Ram's case. 47In Kehar Singh's case, placing reliance on the doctrine of the division(separation) of powers it was pleaded, that it was not open to the judiciary toscrutinize the exercise of the "mercy" power. In dealing with this submission thisCourt held “the question as to the area of the President's power under Article 72falls squarely within the judicial domain and can be examined by the court byway of judicial review”. 48In Kehar Singh 49 the Court declined to lay down guidelines for the exerciseof the power under Article 72, stating that there is sufficient indication in the termsof Art.72 and in the history of the power enshrined in that provision as well asexisting case law. The decisions in Maru Ram and Kehar Singh still hold the fieldand thus the present position is that Presidential Pardon under Article 72 is subjectto judicial review on the grounds mentioned in Maru Ram v Union of India 50 . Thefunction of determining whether the act of a constitutional or statutoryfunctionary falls within the constitutional or legislative conferment of power, or isvitiated by self-denial on an erroneous appreciation of the full amplitude of thepower is a matter to be determined by the court.The Governor’s power of pardon under Article 161 runs parallel to that ofthe President under Article 72 and thus several cases based on the same have abearing on the Presidential Power under Article 72. Moreover, judgments dealingwith Article 72 have simultaneously deal with Article 161 and vice-versa. In theearly case of K.M. Nanavati v State of Bombay, 51 a reprieve granted by theGovernor under Article 161 was held constitutionally invalid since it conflicted withthe rules made by the Supreme Court under Article 145.In Swaran Singh v State of U.P., 52 the Governor of Uttar Pradesh remittedthe whole of the life sentence of an MLA of the State Assembly who had beenconvicted of the offence of murder within a period of less than two years of hisconviction. The Supreme Court found that Governor was not posted with materialfacts such as the involvement of the accused in 5 other criminal cases, hisunsatisfactory conduct in prison and the Governor’s previous rejection of hisclemency petition in regard to the same case. The Court quashed the orderreasoning that the Governor was apparently deprived of the opportunity toexercise the powers in a fair and just manner, hence the ‘order fringed onarbitrariness.In Satpal v State of Haryana, 53 the Supreme Court quashed an order of theGovernor pardoning a person convicted of murder on the ground that theGovernor had not been advised properly with all the relevant materials. The Courtspelt out specifically the considerations that need to be taken account of whileexercising the power of pardon, namely, the period of sentence in factundergone by the said convict as well as his conduct and behavior while heunderwent the sentence. The Court held “not being aware of such material factswould tend to make an order of granting pardon arbitrary and irrational”. 5426547 Supra Note 3948 Ibid49 Ibid50 Supra Note 3951 1961 (1) SCR, p. 54152 1998 (4) SCC 7553 2000 (5) SCC 17054 Ibidhttp://www.bdresearchpublications.com/journal/

Md. Minhazul IslamIn the recent judgment of Epuru Sudhakar and Anr. v Government ofAndhra Pradesh and Ors. 55 The Court held that judicial review of the order of thePresident or the Governor under Article 72 or Article 161, as the case may be, isavailable and their orders can be impugned on the following grounds:(a)(b)that the order has been passed without application of mind;that the order is mala fide;(c) that the order has been passed on extraneous or wholly irrelevantconsiderations;(d)(e)that relevant materials have been kept out of consideration;that the order suffers from arbitrarinessThus, in these judgments concerning the Governor’s exercise of pardon,the Court seems to have widened the grounds for judicial review by enumeratingspecific grounds on which the grant of pardon can be considered arbitrary.Among these are non-consideration of relevant factors such as the length ofsentence already undergone, the prisoner’s behavior and involvement in othercrimes and consideration of extraneous or irrelevant grounds such as politicalaffiliation.ConclusionIn India, it is well settled that the exercise or non-exercise of pardon powerby the President is not immune from judicial review. However, in Bangladesh, it isyet to be settled. In Sarwar Kamal vs State case 56 , for the first time the High CourtDivision quashed the decision of mercy conferred to a convicted fugitive. TheCourt observed that a fugitive is not entitled to get any kind of remedy, unless hesurrenders before the court. At the same time, the High Court Division Judgesobserved, “Possibly it is high time for the Government to think over the matter toavoid controversy, criticism and misuse of power." 57 The time has come to think onthe issues addressed in this article. It is a duty of the Parliament to takeappropriate steps regarding the application of Article 49 to avoid the arbitraryexercise of clemency power. Article 49 of our Constitution should specifically spellout the circumstance in which prerogative power may be exercised and judicialreview power of the Supreme Court should be exercised to control the misuse orarbitrary exercise of such power.26655 Supra Note 3856 Supra Note 2557 Supra Note 25, p 341http://www.bdresearchpublications.com/journal/