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https://www.legalserviceindia.com/article/l165-Power-of-Pardon.html

This goes over the various case laws on judicial review of pardoning powers.

“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, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.”

Similarly

In Satpal v State of Haryana the Supreme Court quashed an order of the Governor pardoning a person convicted of murder on the ground that the Governor had not been advised properly with all the relevant materials. The 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 irrational. The Court also noted the fact that the accused was a member of a political party and had committed the murder during election year.

There are many other such cases. but I haven't found any case law or articles on if the rejection of pardons is also subject to judicial review on the same grounds, that the rejection was mala fide or not based on relevant material.

There was also the judgement in

https://indiankanoon.org/doc/758562

which seemed to point to the power to revoke pardons and re-sentence individuals. Am I interpreting this correctly?

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  • I think the latter would be against the principles of natural justice
    – user49663
    Apr 29, 2023 at 22:33
  • it's worth noting that the president has other powers too like granting commutations and remmissions of sentances which are basically sentance reductions
    – user49663
    Apr 30, 2023 at 4:39

1 Answer 1

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This type of judicial review is not unique to pardons

In essence, every administrative decision must be made in accordance with the law including the requirements of procedural fairness and natural justice. The court is not concerned that the decision maker made the “right” decision - the decision the court itself would have made - just that the decision maker followed the law in making it.

So, if there is a process by which pardons can be brought before the Governor/President and the things they must or must not consider, then the courts will be concerned that it is followed. If the decision to consider or not consider a person for a pardon is at the decision maker’s discretion, then the court has no role.

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  • if a president or governer rejects a pardon without appropriate consideration of the case , could it be challengable in the same way if a pardon is granted without appropriate consideration of relevant facts ?
    – user49663
    May 1, 2023 at 10:11
  • @IndianLawDropout yes
    – Dale M
    May 1, 2023 at 10:29

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