TEAM CODE : H

CU DEPT. OF LAW INTRA-DEPARTMENT MOOT COURT COMPETITION, 2018

BEFORE THE SUPREME COURT OF BERKSHIRE

AT KOLKATA

IN THE MATTER OF

MR. NATHAN KAGAN……………… PETITIONER

Versus

UNION OF BERKSHIRE……………. RESPONDENT

MEMORANDUM FOR PETITIONER

MOST RESPECTFULLY SUBMITTED,

COUNSELS APPEARING ON BEHALF OF THE PETITIONER (H)

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS..........................................................................................4

INDEX OF AUTHORITIES..........................................................................................5-8

STATEMENT OF JURISDICTION...............................................................................9

STATEMENT OF FACTS…………………………………………………………………......10-12

ISSUES RAISED………………………………………………………………………………..13

SUMMARY OF ARGUMENTS……………………………………………………................14-15

ARGUMENTS ADVANCED…………………………………………………………………..16-27

ISSUE 1: PARDON GRANTED BY THE PRESIDENT OF THE UNION OF BERKSHIRE

UNDER ARTICLE 72 WITHOUT ANY AID OR ADVICE FROM THE COUNCIL OF
MINISTERS (CENTRAL GOVERNMENT) OF THE UNION OF BERKSHIRE STANDS
INAPPROPRIATE AND THUS NEEDS AN INTERPRETATION..........................16-19

1.1: The Presidential Pardon granted was without any aid or advice from the‘Council of
Ministers’ at the Centre...............................................................................................16-18
1.2: There was neither any kind of application or petition filed by the defendant before the
President to seek Pardon.................................................................................................19

ISSUE 2: THE PRESIDENTIAL PARDON IN THE GIVEN SCENARIO IS SUBJECT TO

JUDICIAL REVIEW UNDER ARTICLE 32, AS CLAIMED BY THE PETITIONER BY
FILING A WRIT UNDER ARTICLE 32 BEFORE THE SUPREME COURT.
CONSIDERATION OF JUDICIAL REVIEW IS NECESSARY IN ORDER TO PROTECT
THE FUNDAMENTAL RIGHT OF THE PETITIONER GUARANTEED TO HIM UNDER
ARTICLE 21 OF THE CONSTITUTION......................................................................20-25

2.1. The presidential pardon in the given scenario is subject to judicial review under Article 32,
as claimed by the PETITIONER by filing a writ petition under Article 32 before the Supreme
Court of the Union of Berkshire.......................................................................................20-23

2.2. The court should consider his writ petition filed under 32 in order to protect his
Fundamental Right guaranteed to him under Article 21 of the Constitution...........................24-25

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ISSUE 3: APPLICATION OF ARTICLE 14 AND 21 OF THE GENERAL CLAUSE ACT,

1897 IN ORDER TO REVOKE THE PRESIDENTIAL PARDON IN THE GIVEN CASE
SCENARIO AFTER JUDICIAL REVIEW, IF THE SAME IS FOUND TO BE EXERCISED
BY MALA FIDE INTENTIONS OR ON ARBITRARY GROUNDS........26-27

PRAYER........................................................................................................28

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LIST OF ABBREVIATIONS

Abbreviations Full form

& And
Anr Another

Ors Others

Art Article

v. Versus

SC Supreme Court

SCC Supreme Court Cases

UP Uttar Pradesh

AIR All India Reporter

Hon’ble Honourable

Mr Mister

SCR Supreme Court Weekly Reports

St State

NZLR New Zealand Law Reports

AP Andhra Pradesh

PM Prime Minister

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INDEX OF AUTHORITIES

I.STATUTES

Sr. No STATUTE
1. Official Secrets Act, 1923.
2. General Clause Act, 1897.

II.CASES
SERIAL NO. CASE CITATION PAGE NO.
1. Epuru Sudhakar v. A.I.R 2006 SC 3385 15 & 26
Govt. of A.P.

2. Sampath Prakash v. 1969 A.I.R 1153, 15 & 21

State of J&K SCR(3) 574

3. Ram Jawaya Kapur v. A.I.R 1955 SC 149 17

State of Punjab

4. U.N. Rao v. Indira A.I.R 1971 SC 1002 17

Gandhi

5. Maru Ram v. Union A.I.R 1980 SC 2147 17 & 20

of India

6. Shamsher Singh v. A.I.R 1974 SC 2192 18

State of Punjab

7. Kehar Singh v. Union A.I.R 1989 SC 653 20

of India

8. Swaran Singh v. State A.I.R 198 SC 2026 21

of U.P. & Ors.

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9. State ex rel. Maurer v. 86 Ohio St. 3d451 22

Sheword

10. Burt v. Governor [1992] 3NZLR 672 23

General

11. M.C. Mehta v. Union 1987 SCR(1) 819 24

of India

12. Bandhua Mukti A.I.R 1984 SC 802 25

Morcha v. Union of
India

13. State of Rajasthan v. A.I.R 1997 SC 1361 26

Union of India

14. Ram Bali Ragbhar v. A.I.R 1975 SC 623 27

State of West Bengal
& Ors.

III.INTERNET

SERIAL NO. NAME OF THE REFERRED SITES

1. www.indiankanoon.org

2. www.casemine.com

3. www.lawteacher.net

4. www.thehindu.com

5. www.legalbites.in

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6. www.outlookindia.com

7. http://www.legalserviceindia.com

8. http://www.mondaq.com

IV.ARTICLES

SERIAL NO. NAME

1. legalserviceindia.com/article/l149-Presidential-
Pardon.html

2. lawctopus.com/academike/pardoning-power-of-
president-recent-developments/

3. General Clauses Act, supra note 58 ss. 14 and 2

The Constitution of India, supra note 3 Art. 367.

5. Thaindian news, (lANS) August 9, 2008, available at:

http://www.thaindian.corri/newsportal/uncategorized/no-
written-procedure-to-dea l-with - mercv-petition-home-
ministrv 10081935.htm

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V.BOOKS

1. Introduction to the Constitution of India by Durga Das Basu – 22nd edition, 2015

2. Constitution of India by V.N. Shukla -13th edition, 2017.

3. Constitutional Law of India by Dr. J.N. Pandey – 54th edition, 2017.

4. Indian Constitutional Law by M.P. Jain.

VI.JOURNALS

1. University of St. Thomas Law Journal (Judicial review and the clemency power) by
Daniel T. Kobli

2. Democracy and Judicial Review by S.P. Sathe .

3. Pardoning Powers under theConstitution of India by Shodhganga.

4. Judicial Response to thePardoning Power by Shodhganga.

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STATEMENT OF JURISDICTION

The counsel on behalf of the PETITIONER most respectfully and humbly submits to the
Jurisdiction of the Hon’ble Supreme Court at Berkshire under Article 32 of the Constitution of
Berkshire.

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STATEMENT OF FACTS

1. The State of Berkshire

Previously, a colony of a Western European power, the Republic of Berkshire is a quasi-
federal democratic State in the Asian sub-continent. Due to colonialization, Berkshire
adopted their system of governance, and after attaining Independence in the mid-
twentieth century, Berkshire adopted their own Constitution which was identical to the
system of governance of their former imperial masters. From the time the Constitution of
Berkshire was adopted, the Constitution has helped transform the State into a stable and
prospering democracy with effective and robust democratic institution which helps
safeguard the basic freedoms of each citizen of Berkshire.
2. Political scenario of Berkshire
There are two major parties at Berkshire – the conservative Berkshire People’s Party
(BPP) and the liberal United Berkshire Alliance Party (UBA). The UBA played a
significant role in Berkshire’s struggle for Independence due to which it retained an
overwhelming popular support in the first sixty years following Independence. The
success was so overwhelming that they won the majority in not all but 3 of the 15
General Elections held. In 2013 however, due to rising discontent with the economic
policies of the UBA, The citizens of Berkshire voted heavily towards the BPP. Therefore,
the President of Berkshire asked the leader of BPP, Mr. Nathan Kagan to form the
Government at the centre.
3. A new defence contract
In August 2015, the BPP government cancelled a defence contract with Halsbury
Aeronautics Limited (HAL), which was initially negotiated and entered into by the UBA
government in February 2013. The contract with HAL was for the manufacturing of
several military aircrafts. With HAL a history, the BPP government entered into a
contract with Rochester Defence Limited (RDL), a private defence contractor for
manufacturing military aircrafts similar to those which were manufactured by HAL under
the previous contract. The agreement was formally executed between RDL and the
Ministry of Defence on 10th December 2015.
4. RDL contract comes under speculation

It was later revealed that the RDL contract involved ten times the consideration of the
HALcontract. The BPP government refused to answer such claims on the ground that such
information was prejudicial to national security. They also refused to justify the reason for such a
high consideration. Due to this, there was widespread outrage in the country, and the opposition
(UBA) alleged that the RDL contract was surrounded by the stench of cronyism. The allegation
made by the UBA was based on the fact that the founder and CEO of RDL was a fervent
supporter of Prime Minister Kagan, and even made contributions for campaigning for the 2013
General Elections. It was also pointed out that the RDL was founded in 2015, and therefore it
had no prior experience in handling defence contracts of such a magnitude. Due to allegations

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made against the government, Prime Minister Kagan was forced to respond and he defended the
RDL contract in the Parliament by saying that the aircrafts manufactured under the RDL contract
were superior to the HAL variants and were not identical to it either. He further added that RDL
had managed to hire military aeronautics expert from around the globe in order to carry to out
the obligations of the contract. This was not the case with HAL prior to the cancellation of the
HAL contract.

5. RDL contract comes back into the limelight

It was on the 25th of August 2018, exactly a month before the 2018 General Elections,
when the controversy surrounding the RDL contract came back into limelight. Berkshire
Chronicle reported that a high level RDL employee had provided the newspaper’s editor,
Mr. John Leahy, with photographs of certain classified Government documents detailing
the particulars of the RDL contract which proved that the aircrafts to be manufactured
under the RDL contract were almost completely similar with those under the HAL
contract. The newspaper that printed the pictures refused to name their source. The
pictures were also found to have been circulated in several online forums. The BPP
government was outraged at such revelations and stated that the communication of such
documents was prohibited under the Official Secrets Act, 1923, and promised to bring the
person(s) responsible to justice. The government also noted the fact that the documents
leaked did not merely contain the particular of the RDL contract, they also contained
quite a lot of sensitive information relating to the nation’s military and air forces, which
were of immense strategic importance. This came to the knowledge of several other
national newspapers, who chose not to print the pictures themselves, but rather reported
on the contents of the same which were relevant to the RDL contract.
6. Charges laid on Mr. Alito and Mr. Leahy
After the investigation was carried out to find the perpetrator for leaking the documents,
on the 3rd of September 2018, Mr. Michael Alito was charged under Section 3 and 5 of
the Official Secrets Act, 1923. Mr. Leahy, the editor of the Berkshire Chronicle, was also
charged under Section 5 of the Act. After trial before the Court of Sessions in
Kensington, both men were convicted on the 28th of September, 2018, and awarded life
sentences. Both preferred appeals to the High Court at Kensington.
7. BPP government’s popularity goes down south

Due to the damning revelations relating to the RDL contract, BPP government’s popularity hit
rock bottom. The public hailed Mr. Alito as a crusader against corruption and cronyism, a man
who risked everything to hold the government accountable. There were protests, marches and
demonstrations against the BPP government organised across Berkshire, and effigies of
prominent BPP leaders were burnt in public. There were also loud cries and chants defending
Mr. Alito’s actions and demanding his immediate release from custody. #JusticeForAlito was
trending worldwide across social media platforms around the world. In this state of
generalfurore, the people of Berkshire went to the pollson the 26th of September and granted
UBA an overwhelming mandate. On the same day however, the newspapers broke another story,

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wherein they reported that Mr. Alito had some indirect connections to several influential
members of the UBA, though the exact nature of such connections were unknown. The story was
largely ignored by the public.

8. New government formed

The President of the Republic of Berkshire asked the leader of the UBA, Mr. Charles
Roberts, to form a Government on the 27th of September, 2018.
9. Grant of pardon to Mr. Alito
On 5th October 2018, the President of Berkshire, vide an order bearing the same date,
granted a full pardon to Mr. Alito, under Article 72 of the Constitution of Berkshire. The
pardon was granted without any express application or petition from Mr. Alito, while the
appeal was still pending before the High Court at Kensington. Mr. Leahy was not granted
a similar pardon.
10. Press Conference organised by Mr. Alito’s lawyers
Following the grant of the pardon, Mr. Alito’s lawyers organised a small press
conference which was televised across many television news channels. When the lawyers
representing Mr. Alito were asked the motive behind leaking such documents, Mr.
Alito’s lawyers responded by saying, “Mr. Alito released the documents as soon as he
gained access to them and realised the implications of the contents of the same. He sent
the pictures of such documents directly to Mr. Leahy since he was convinced that it was
necessary in the public interest to do so. He had the utmost faith in Mr. Leahy’s
journalistic credentials and believed he was the best man to bring the scandalous affairs
of the Government to light. Mr. Alito, believed at the time, and continues to believe that a
man who has access to information of a Government’s misdeeds has a moral and civic
duty to bring such information before the general public. This duty obligates such a man
to act with great swiftness and urgency, especially when he gets access to such
information a month before the public are expected to vote into power a new
Government. The public has the right to make an informed decision, and thus Mr. Alito
felt that directly sending the documents to a journalist of the calibre and repute of Mr.
Leahy would better facilitate such a right.”
11. Matter challenged by Mr. Kagan
Mr. Kagan challenged the pardon by filing a writ petition before the Supreme Court of
Berkshire. The matter is now before the Constitution bench of the Supreme Court of
Berkshire.

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ISSUES RAISED

I.

WHETHER THE PRESIDENTIAL PARDON GRANTED VIOLATES THE ESSENCE OF

ARTICLE 72 OF THE CONSTITUTION?

II.
WHETHER THE PRESIDENTIAL PARDON GRANTED BY THE PRESIDENT OF
THE UNION OF BERKSHIRE FALL WITHIN THE PURVIEW OF JUDICIAL
REVIEW TO SCRUTINUZE ITS CONSTITUTIONAL VALIDITY?

III.
WHETHER THE PRESIDENTIAL PARDON IS SUBJECT TO REVOCATION
AFTER ITS INTERPRETATION USING ARTICLE 14 AND 21 OF GENRAL
CLAUSE ACT, 1897?

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SUMMARY OF ARGUMENTS

[1]. PARDON GRANTED BY THE PRESIDENT VIOLATES THE ESSENCE OF

ARTICLE 72 OF THE CONSTITUTION.

Firstly, 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." Whereas in the given case, the matter still
being before the High court, the president’s action has violated the essence of the Article 72 of
the constitution. The pardon being granted without any express application or petition should
undergo judicial review by the Court of law.
Secondly, the President does not have an absolute power to grant pardon to any case. It is subject
to some degree of restrictions.The area within which this power can be exercised has specifically
been prescribed by the Constitution itself. As per Article 72(1) the President of India has the
power to grant pardons, reprieve, respite etc. only in the following cases:

a. Punishment or Sentence passed by Court Martial

b. Punishment or Sentence passed under Union Laws

c. Sentence of Death under any law .1

Thus, in the given case the President has exercised his power beyond the scope of the extent of
the provisions listed under the Article 72 of the Constitution of the Union of Berkshire.

[2].THE CLAIMS MADE BY PETITIONER FALL WITHIN THE PURVIEW OF

JUDICIAL REVIEW UNDER ARTICLE 32 TO SCRUTINIZE THE
CONSTITUTIONAL VALIDITY OF THE PARDON IN THE GIVEN CASE

The claims made by the PETITIONER, Mr. Nathan Kagan, former P.M of the Union of
Berkshire and leader of BPP party fall within the purview of Judicial review under the article 32
of the Union Of Berkshire. Pardon granted by the president to Mr. Michael Alito, sentenced to
life imprisonment for his misdeeds against the security of nation is challenged by the former P.M
of the Union of Berkshire. Sudden grant of pardon by the President without any aid or advise of
the Central government(Council of Ministers) has made the former P.M file a writ petition in the
court. A judicial review should be made in order to scrutinize the validity of the pardon. Judicial
review of the order of the President or the Governor under Article 72 or Article 161, as the case
may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;

1
INDIA CONST. art. 72, cl. 1.
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(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness. 2
The power of pardon is an exceptional power which can set a person free from all the liabilities
of his criminal act. Hence this power should be exercised with utmost caution and to ensure the
equitable, bona fide and reasonable use of this power, the existence of Judicial Review.

[3]. ACTION OF THE PRESIDENT SHOULD BE INTERPRETATED USING ARTICLE

14 AND 21 OF GENERAL CLAUSE ACT, 1897.

In the following case, the presidential pardon granted to Mr. Michael Alito is questionable and
thus can be challenged in a court of law.

By virtue of section 14 and 21, it can be told that a pardon can be interpreted and thus
withdrawal of an executive order is permissible. In US, the Corpus JurisSecundum, supra note
133 paragraph 16 makes it clear that a pardon obtained by fraud or misrepresentation can be
revoked. Whereas in India in order to challenge a presidential pardon obtained with fraud or
mala fide intention, article 367(1) of the General Clause Act, 1897 enlists a provision to interpret
the same and thus provide for its withdrawal with application of sections 14 and 21 of the
General Clause Act, 1897.

The Scope and ambit of the Sections 14 and 21 of the General clauses Act has been analyzed by
the Supreme Court in Sampat Kumar case3. It was inter alia held that:

“This provision is clearly a rule of interpretation which has been made applicable to the
Constitution in the same manner as it applies to any Central Act or Regulation. On the face of it,
the submission that Section 21 cannot be applied to the interpretation of the Constitution will
lead to anomalies which can only be avoided by holding that the rule laid down in the section is
fully applicable to all provision of the Constitution.”

2
Epuru Sudhakar v. Govt. of A.P, A.I.R 2006 SC 3385 (India).
3
Sampat Kumar v. State of Jammu & Kashmir, A.I.R 1969 SC 1153 (India)
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[D.] ARGUMENTS ADVANCED

[1]. PARDON GRANTED BY THE PRESIDENT OF THE UNION OF BERKSHIRE

UNDER THE ARTICLE 72 WITHOUT ANY AID OR ADVISE FROM THE COUNCIL
OF MINISTERs (CENTRAL GOVERNMENT) OF THE UNION OF BERKSHIRE
STANDS INAPPROPRIATE AND THUS NEEDS AN INTERPRETATION.

I. The Section 3 of The Official Secrets Act, 1923 of the Union of Berkshire, the penalties
for spying if proved is to be punished by either life imprisonment or imprisonment to
fourteen years in other cases. In the given case, the defendant, Mr. Michael Alito, being
proved before the court was sentenced to life imprisonment under the aforementioned
section of the given act but was later granted pardon by the President. The pardon given
was without any aid or advice from the Council of Ministers. The same can be construed
from the fact that the formation of new government and grant of full pardon were
executed on the same date. On the other hand, there was neither any application nor
mercy petition filed before the president by the respondent. Thus, the said pardon
violated the provisions listed under the Article 72 of the Constitution of the Union of
Berkshire.
1.1.The Presidential Pardon granted was without any aid or advice from the‘council of
Ministers’at the Centre.
1.2.There was neither any kind of application or petition filed by the defendant before the
President to seek Pardon.

[1.1] The Presidential Pardon granted was without any aid or advice from the
‘Council of Ministers’ at the Centre and thus granted arbitrarily .

II. The President cannot grant an accused pardon under the Article 72 of the
constitution of the Union of Berkshire [herein after referred as Berkshire]
withoutany aid or advice from the ‘Council of Ministers at the Central (Central
Government of the Union). Pardon granted without any sought of aid or advice
violates the very provisions listed under the aforementioned article (Article 72) of
the Constitution of Berkshire. According to Article 74 (1) –

There shall be a Council of Ministers with the Prime Minister at the head to aid and advice
the President who shall, in the exercise of his functions, act in accordance with such
advice. Provided that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in accordance with the
advice tendered after such reconsideration.

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(2) The question whether any, and if so what, advice was tendered by Ministers to the
President.

III. Articles i.e. 74 make it clear that the president of India shall act strictly in accordance with
the aid and advice of the council of Ministers. Whenever they exercise their functions they are
bound to follow such advice as well. There is again a provision under the aforementioned article
(Article 74) whereby the president may ask the council to reconsider their advice. But after
reconsideration the decision so sought is binding on the president.

IV. The constitutions and legislation of several countries require participation of a government
member (Minister) in the decision making process on pardon cases. The participation of the
government member in the process may be obligatory or have an advisory character. The
participation of the government member is based on the need for a person, who is accountable
before the people, to also participate in the pardon process, making it more fair.4

V. In Ram Jawaya Kapur v. State of Punjab5, the Supreme court observed that under Article
53(1) of our Constitution the executive power of the Union is vested on the President but under
Article 74 there is to be a Council of Ministers with the Prime Minister as the Head to aid and
advise the President in the exercise of his functions. The President has been made a formal or
constitutional head of the executive and the real executive powers are vested in the Ministers or
the Cabinet…………..In the Indian Constitution, therefore, we have the same system of
Parliamentary Executive as in England, and the Council of Ministers consisting as it does, of the
members, of the Legislature is, like the British Cabinet “a hyphen which joins, a buckle which
fastens the legislative part of the State to the executive part. The Cabinet enjoying, as it does, a
majority in the Legislature, concentrates in itself the virtual control of both legislative and
executive functions…….”

VI. In U.N. Rao v. Indira Gandhi6, the Supreme Court of India held that even after the
dissolution of the Lok Sabha the Council of Ministers does not cease to hold office. Article 74(1)
is mandatory and, therefore, the President cannot exercise the executive power without the aid
and advice of the Council of Ministers. Any exercise of executive power without such aid and
advice will be unconstitutional in view of Article 75(1). The provisions of Article 75(3) which
envisage the doctrine of ministerial responsibility has to be harmoniously construed with the
provisions of Article 74(1) and 75(2). Thus construed, Article 75(3) applies only when the House
of the People does not stand dissolved or prorogued. It cannot, therefore, be said that on
dissolution of the House of the People, the Prime Minister and, other Ministers must resign or be
dismissed by the President.

VII. In Maru Ram & Anr v. Union of India7 and others, the court says, “An issue of deeper
import demands our consideration at this stage of the discussion. Wide as the power of pardon,

4
Tamar Avaliani & Giorgi Chitidze, The Power of Pardon: Georgian Model & International Experience, 4 PARDON
POWER, 19 (2016)
5
A.I.R. 1955 SC 149.
6
A.I.R. 1971 SC 1002.
7
A.I.R 1980 SC 2147.
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commutation and release (Art. 72 and 161) is, it cannot run riot; for no legal power can run
unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come
upon the second Constitutional fundamental which underlines the submissions of counsel. It is
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 We proceed on the basis of that these axioms are valid in our constitutional order.”
Thus the court rightly held that any power, which is with respect to the society in general, must
not be exercised randomly or in a malevolent fashion and that power related to the public of any
kind whether constitutionally or otherwise must be exercised in such a manner that it is not mala
fide or arbitrary, that is fairness in all display of power. Even the Supreme Court itself tried to
explain the reason for the equitable exercise of the power in the following words:

“No Constitutional power can be vulgarised by personal vanity of men in authority. Likewise, if
an opposition leader is sentenced, but the circumstances cry for remission such as that he is
suffering from cancer or that his wife is terminally ill or that he has completely reformed
himself, the power of remission under Articles 72/161 may ordinarily be exercised and a refusal
may be wrong-headed. If, on the other hand, a brutal murderer, blood-thirsty in his massacre, has
been sentenced by a court with strong observations about his bestiality, it may be arrogant and
irrelevant abuse of power to remit his entire life sentence the very next day after the conviction
merely because he has joined the party in power or is a close relation of a political high-up. The
court, if it finds frequent misuse of this power may have to investigate the discrimination.''

VIII. The language of the Constitution does not imply any manner of exercise of the pardoning
power, but practically it is stressed by the Supreme Court in Shamsher Singh v. State of Punjab8,
the President or the Governor of a State is bound by the aid and advice of the Council of
Ministers. It has been specified under Article 74(1) 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 functions, act in accordance with such advice.

IX. In Ireland, the power of pardon is nominally exercised by the President, who must act “on
the advice” of the Cabinet. Thus, in practice, the decisions to pardon are made by the
government of the day and the President has no discretion in the matter. The responsibility can
also be vested in persons or bodies other than the President. The Irish Constitution states that,
“The right of pardon and the power to commute or remit punishment imposed by any court
exercising criminal jurisdiction are hereby vested in the President, but such power of
commutation or remission may also be conferred by law on other authorities”.9

X.It can be thus concluded that the pardon exercised with mala fide intention or in a whimsical
manner, violates the provisions listed under Article 72 of the Constitution of The Union of
Berkshire. In the given case, the pardon being obtained without any aid or advice from The
Central government i.e., the council of ministers stands inappropriate.

8
A.I.R 1974 SC 2192.
9
IRISH CONST. art. 13.6.
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[1.2] There was neither any kind of application nor a mercy petition filed by the defendant
before the President to seek pardon.

XI. As the facts suggest in the present case, the President of Berkshire granted a full pardon to
Mr Alito thus the pardon being granted without any express application or petition from Mr Alito
Now it being quite evident from the facts of the case , there being no clear or expressed consent
for seeking of pardon which was supposed to be by filing a mercy petition before the President
of Berkshire , the pardon was thus granted without fulfilling the proper procedures required .

XII. The procedure established for Presidential pardon demands for a mercy petition to be filed
before the President .Such petition is then sent to the Ministry of Home Affairs in the Central
Government for consideration. The aforementioned petition is discussed by the Home Ministry
in consultation with the concerned State Government. After the consultation, recommendations
are made by the Home Minister and then, the petition is sent back to the President.10 Although
the same procedure was not followed in the given scenario of Nathan Kagan v. Union of
Berkshire yet, the president granted the respondent with full pardon. It is clear violation of the
procedure established under the Article 72 of the constitution of the Union of Berkshire.

XIII. The mercy petition lets the president examine the ground on which the pardon is to be
granted. The grounds such as the convicted person is the only bread earner of the family or the
physical fitness of the convict, his age or even the law was quite harsh or the court by
chance committed any mistake or error inadvertently , may be taken into consideration at
the time of disposal of the mercy petition.11 The absence of such petition has thus made the
pardon arbitrary and thus in violation of the established rule of law.It is true that the petition
prepared by the convicted person is to be presented to the President of India. But there is no
specific procedure established for the same. Yet, it is to be filed before the president to seek
pardon by virtue of the article 72 of the constitution of Union of Berkshire. It is the simplest
form of application filed before the president.

10
http://shodhganga.inflibnet.ac.in/bitstream/10603/128311/18/12_chapter%205.pdf
11
ibid
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[2]. THE PRESIDENTIAL PARDON IN THE GIVEN SCENARIO IS SUBJECT TO

JUDICIAL REVIEW UNDER THE ARTICLE 32, AS CLAIMED BY THE PETITIONER
BY FILING A WRIT UNDER ARTICLE 32 BEFORE THE SUPREME COURT .
CONSIDERATION OF JUDICIAL REVIEW IS NECESSARY IN ORDER TO
PROTECT THE FUNDAMENTAL RIGHT OF THE PETITIONER GUARANTEED TO
HIM UNDER ARTICLE 32 OF THE CONSTITUTION.

XIV.The PETITIONER, Nathan Kagan, the former P.M of the Union of Berkshire, has filed the
writ petition under Article 32 before the Supreme Court in order the review the constitutional
validity of the presidential pardon granted to the respondent, Michael Alito. The given pardon is
marked with several anomalies. It is entirely in violation to the procedure established under
article 72 of the constitution, describing the same (pardon). Therefore, in the present scenario the
court should consider ‘judicial review’ under article 32 of the constitution to review the
anomalies present in the pardon granted by the President under article 72. The same should be
considered in order to protect the fundamental right guaranteed to the PETITIONER under the
article 32, right to constitutional remedies.

2.1. The presidential pardon in the given scenario is subject to judicial review under article 32, as
claimed by the PETITIONER by filing a writ petition under the Article 32 before the Supreme
Court of the Union of Berkshire.

2.2. The court should consider his writ petition filed under Article32 in order to protect his
fundamental right guaranteed to him under article 368 of the constitution.

[2.1] The presidential pardon in the given scenario is subject to judicial review under the
article 13, as claimed by the PETITIONER by filing a writ petition under the article 32
before the Supreme Court of the Union of Berkshire.

XV . In the given scenario the presidential pardon granted to the respondent under article 72 is
totally in violation to the essence of the same. Therefore the pardon is said to be marked with
several anomalies and is exercised in arbitrary manner. Hence the given pardon is subject to
judicial review under Article 32 of the constitution. Referring again to the landmark judgment of
Maru Ram &Anrv. Union of India & Others12, it can be construed that all public power,
including constitutional power, shall never be exercisable arbitrarily or in mala fide manner.Anr
landmark case Kehar Singh &Anr v. Union of India13& others, it was held that the order of the
President cannot be subjected to judicial review on its merits except within the strict limitations
delineated in Maru Ram's case. The function of determining whether the act of a constitutional or
statutory functionary falls within the constitutional or legislative conferment of power, or is
vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter
for the court. In the following scenario the pardon granted is vitiated by self denial and erroneous

12
A.I.R 1980 SC 2147
13
A.I.R 1989 SC 653
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appreciation and is beyond the scope of the article 72 of the constitution. Hence, the need of
judicial review stands necessary.

XVI. The aforementioned judgments of different cases regarding the pardoning power of
Executive, thus describes the present case scenario. In the present case, it is clearly visible that
the pardon granted to the respondent, Michael Alito was in completely anomalous and arbitrary
in nature. Although a president can grant pardon even if the case is still before the court of law,
yet the same has to be executed in the manner prescribed under the aforementioned article. The
constitutional validity of the given case does not fall within the ambit of the power of the
president.

XVII. Anr landmark judgement proving the need of judicial review in the following scenario is
Swaran Singh v. State of UP& Ors.14,where it was held that the pardoning power "was exercised
arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-
product order cannot get the approval of law and in such cases, the judicial hand must be
stretched to it". This Court thus, quashed the said order of the Governor on the ground that when
the Governor was not posted with material facts, the Governor was apparently deprived of the
opportunity to exercise the powers in a fair and just manner. Conversely, the impugned order, it
was observed "fringes on arbitrariness". Likewise in the given case, the president was deprived
of any aid or advice from the council of ministers, which is necessary as laid down in the Article
74(1) of the constitution and the pardon granted was not a result of any mercy petition from the
respondent. Although the given case is different from the present case scenario yet the
constitutional validity of pardon can be evaluated from the same. The presence of ‘arbitrariness’
in the exercise of clemency makes it relatable to the present case.

XVIII. In the present case15, when the Governor was not posted with material facts such as those
indicated above , the Governor was apparently deprived of the opportunity to exercise the
powers in a fair and just manner, conversely, the order now impugned fringes on arbitrariness.
What the governor would have ordered if he were apprised of the above facts and materials is not
for us to consider now because the Court cannot then go into the merits of the grounds which
persuaded the Governor in taking a decision in exercise of the said power. Thus the order of the
Governor impugned in these proceedings is subject to judicial review within the strict parameters
laid down in Maru Ram Case and reiterated in Kehar Singh Case.

XIX.Although the pardon is the exclusive prerogative of the President, this issue needs relevant
legislative regulation ensuring its predictable nature by convicts and an interested society.
Unfortunately, there have been recent cases when Presidents have abused this right by pardoning
members of their political parties or/and family members, causing some doubts about the
impartiality of this power by the President.

XX. Judicial review in an independent judiciary is the cardinal feature, and it assures faith
enshrined in the Constitution. The need for independent and impartial judiciary is the command

14
A.I.R. 1998 SC 2026
15
Ibid
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of the Constitution and call of the people. Judicial review can be broadly divided into judicial
review of legislative action, judicial review of judicial decisions and judicial review of
administrative action. The court in its exercise of its power of judicial review would zealously
guard the human rights, fundamental rights and the citizen’s rights of life and liberty.16

XXI. The need for judicial review in the current caseis further proved in yet another landmark
judgement from the United States, in State ex rel. Maurer v. Sheward17, the Ohio Supreme Court
declared void a pardon granted by Governor Richard F. Celeste because the Governor had not
followed the procedure set forth in the Ohio Constitution. The court stated that “an attempted
pardon that is granted without adherence to constitutionally authorized requirements is invalid
and is not immune to challenge.”

XXII.This privilege of presidential pardon vested upon the president cannot be unlimited and it
should fall within the boundaries of the constitution and legal rationality. Otherwise, there is a
possibility of transforming the Presidential Pardon, an institution based on the humanitarian
principles, into a means for discrimination, inhumanity, and other injustices.

XXIII. The Constitution has, thus, created an independent machinery for resolving these
disputes and this independent machinery is the judiciary which is vested with the power
of judicial review to determine the legality of executive action and the validity of legislation
passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the
different organs of the State such as the executive and the legislature within the limits of the
power conferred upon them by the Constitution. This power of judicial review is conferred on
the judiciary by Article 32 of the Constitution. The judiciary is the interpreter of the Constitution
and to the judiciary is assigned the delicate task to determine what is the power conferred on
each branch of government, whether it is limited, and if so, what are the limits and whether any
action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional
values and to enforce the constitutional limitations. That is the essence of the rule of law, which
inter alia requires that "the exercise of powers by the government whether it be the legislature or
the executive or any other authority, be conditioned by the Constitution and the law". The power
of judicial review is an integral part of our constitutional system the power of judicial review is
unquestionably a part of the basic structure of the Constitution.18

XXIV. Referring to another case of Epuru Sudhakar v. Government of Andhra Pradesh19, the
constitutional validity of pardon is again questioned. In the given case, the PETITIONER
demanded for judicial review under article 32 inter alia alleging that the grant of remission
(described in the writ petition as grant of pardon) was illegal, relevant materials were not placed
before the Governor, and without application of mind impugned order were passed. The
recommendations made for grant of remission were based on irrelevant and extraneous materials.
The factual scenario has not been placed before the Governor in the proper perspective. It was

16
http://www.legalserviceindia.com/article/l149-Presidential-Pardon.html
17
86 Ohio St. 3d 451
18
Gurram Ramochandra Rao, India: Judicial Review in India, MONDAQ (April 10,2003,12:06AM)
www.mondaq.com/india/x/20649/ConstitutionalAdministrativeLaw/JudicialReviewinIndia
19
A.I.R. 2006 SC 3385
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therefore held that by the Supreme Court that it is a well-set principle that a limited judicial
review of exercise of clemency powers is available to the Supreme Court and High Courts.
Granting of clemency by the President or Governor can be challenged on the following grounds:

The order has been passed without application of mind.

The order is mala fide.

The order has been passed on extraneous or wholly irrelevant considerations.

Relevant material has been kept out of consideration.

The order suffers from arbitrariness.

Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial
review.

The above given judgment in Epuru Sudhakar case is very much relatable to present scenario. the
impugned order passed was without any application of minds. It was wholly passed on irrelevant
consideration. The pardon granted by the President is questionable and thus should be reviewed
by the court of law.

XXV. The Court of Appeal of New Zealand in the case of Burt v. Governor General20 held as
follows: “it would be inconsistent with the contemporary approach to say that, merely because it
is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial
challenge. There is nothing heterodox in asserting, as counsel for the appellant to, that the rule of
law requires that challenge shall be permitted in so far as issues arise of a kind with which the
Courts are competent to deal. … it is more a matter of a value or conceptual judgment as to the
place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day.
In attempting such a judgment it must be right to exclude any lingering thought that the
prerogative of mercy is no more than an arbitrary monarchical right of grace and favour. As
developed it has become an integral element in the criminal justice system, a constitutional
safeguard against mistakes”

XXVI. The appropriateness of judicial review of a particular subject matter is measured on the
basis of ‘justiciability’. Courts have a constitutional obligation to uphold the rule of law by
enforcing the procedural rights in relation to executive decision making. Being in the nature of
an executive power, the power to pardon may be said to be justiciable insofar as examining the
procedural propriety of decisions of pardon is concerned. The view that this executive power
should not be subject to judicial review merely since it’s in the nature of a prerogative has been
criticised by some as being merely ‘a bald assertion’.21

20
[1992] 3 NZLR 672
21
Parul Kumar, Executive Power to Pardon, 1.9,27(2009)
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XXVII. It can be concluded that if the power to pardon is exercised in an indiscriminate manner,
then it may undermine the precedential value of judicial decisions and upset the equilibrium that
should ideally exist between executive and judicial action. Unless the President and Governors
exercise a certain degree of self-restraint while making decisions under the pardon to power, the
use of this power could potentially destabilise the authoritativeness of decisions made by the
judiciary, and have a negative impact on the deterrent effect sought through such judgments. It is
important that the President and Governors provide cogent and convincing reasons while
exercising their pardoning power. In order to keep a check judicial review is needed.

2.2. The court should consider his writ petition filed under 32 in order to protect his
Fundamental Rights.

XXVIII. In the given case of Nathan Kagan v. Union of Berkshire, consideration of ‘judicial
review’ of the pardon is important because the same is related to the right of the PETITIONER
guaranteed to him under article 21.The Supreme Court, being the protectors of the civil liberties
of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in
exercise of its jurisdiction under Articles 32 of the Constitution to the victim or the heir of the
victim whose fundamental rights under Article 21of the Constitution of India are established to
have been flagrantly infringed by calling upon the State to repair the damage done by its officers
to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by
way of a civil suit or criminal suit.

XXIX. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have
moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction.
In doing so the courts take into account not only the interest of the applicant and the respondent
but also the interests of the public as a whole with a view to ensure that public bodies or officials
do not act unlawfully and do perform their public duties properly particularly where
the fundamental right of a citizen under Article 21is concerned. Law is in the process of
development and the process necessitates developing separate public law procedures as also
public law principles. It may be necessary to identify the situations to which separate
proceedings and principles apply and the courts have to act firmly but with certain amount of
circumspection and self- restraint.

XXX. The court should not only protect the fundamental right but also recommend some
remedies against breach of the same. Here the remedy for the breach of the fundamental right
would be interpretation of the presidential pardon under article 32. In M.C. Mehta Vs. Union of
India & Ors.22, the court of law observed , “ We are also of the view that this Court
under Article 32(1)is free to devise any procedure appropriate for the particular purpose of the
proceeding, namely, enforcement of a fundamental right and under Article 32(2) of the court has
the implicit power to issue whatever direction, order or writ is necessary in a given case,
including all incidental or ancillary power necessary to secure enforcement
ofthe fundamental right. The power of the court is not only injunctive in ambit, that is,

22
1987 SCR (1) 819
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preventingthe infringement of a fundamental right, but it is also remedial in scope and provides
relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha23
case.

If the court were powerless to issue any direction, order or writ in cases where
a fundamental right has already been violated, Article 32 would be robbed of all its efficacy,
because then the situation would be that if a fundamental right is threatened to be violated, the
court can injunct such violation but if the violator is quick enough to take action infringing
the fundamental right, he would escape from the net of Article 32. That would, to a large extent,
emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile.
We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that
his fundamental right has been violated. He can in that event seek remedial assistance under
Article 32. The power of the court to grant such remedial relief may include the power to award
compensation in appropriate cases. We are deliberately using the words "in appropriate cases
"because we must make it clear that it is not in every case where there is a breach of
a fundamental right committed by the violator that compensation would be awarded by the court
in a petition under Article 32. The infringement of the fundamental right must be gross and
patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons, or it should appear
unjust or unduly harsh or oppressive on account of their poverty or disability or socially or
economically disadvantaged position to require the person or persons affected by such
infringement to initiate and pursue action in the civil courts. Ordinarily, of course, a petition
under Article 32 should not be used as a substitute for enforcement of the right to claim
compensation for infringement of a fundamental right through the ordinary process of civil court.
It is only in exceptional cases of the nature indicated by us above, that compensation may be
awarded in a petition under Article 32. If we make a fact analysis of the cases where
compensation has been awarded by this Court, we will find that in all the cases, the fact of
infringement was patent and inconvertible, the violation was gross and its magnitude was such as
to shock the conscience of the court and it would have been gravely unjust to the person
whose fundamental right was violated, to require him to go to the civil court for claiming
compensation.” Thus, in the present case scenario, Nathan Kagan, the PETITIONER’s
fundamental right should be protected from getting infringed and the same should be provided
with some remedies in order to protect him getting any damage by the violation of his personal
life or liberty guaranteed to him under him under Article 21. Granting pardon to an accused
without anylegal basis and on arbitrary grounds might be harmful to the life of Mr. Nathan
Kagan.

XXXI. By going through Judicial Review and various cases on it, it can be said that judicial
review is playing a very crucial role in helping legitimizing and sustain the unequal structuresand
processes of fundamental right. Indeed, it is the principal language in which domination is
coming to be expressed in the new era of globalization. It must be protected and constitute as a

23
AIR 1984 SC 802
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fundamental right of the Constitution. Thus, judicial review is a Constitutional imperative

necessary for checking the arbitrariness of the executive as well as legislative forbearance. And
as Dr. Amartya Sen says, “the justification for protecting fundamental rights is not on the
assumption that they are higher rights, but that protection is the best way to promote a just and
tolerant society.” Lord Steyn also said that “judiciary is the best institution to protect
Fundamental Rights, given its independent nature and also because it involves interpretation
based on the assessment of values besides textual interpretation.”

[3]. APPLICATION OF ARTICLE 14 AND 21 OF THE GENERAL CLAUSE ACT, 1897

IN ORDER TO REVOKE THE PRESIDENTIAL PARDON IN THE GIVEN CASE
SCENARIO AFTER JUDICIAL REVIEW, IF THE SAME IS FOUND TO BE
EXERCISED BY MALA FIDE INTENTIONS OR ON ARBITRARY GROUNDS.

XXXII. In the present case scenario of Nathan Kagan v. Union of Berkshire, the court after
carrying out Judicial review should revoke the pardon, in case the same is found to be executed
by mala fide intentions or on arbitrary grounds. By virtue of section 14 and 21 of the General
Clause Act, 1897 which is applicable for the purpose of the interpretation of the constitution as
declared by the constitution itself, the withdrawal of an order of an executive while exercising a
constitutional power is permissible.Section 14 of the General Clauses Act makes it clear that if
any power is conferred by any Central Act or Regulation made after the commencement of the
General Clauses Act then that power can be exercised from time to time as the occasion may
require. The power to grant pardon also falls under the four corners of this Section, hence an
order of pardon issued can always be modified if the occasion requires such as in case of a
pardon received or obtained on false or fraudulent ground. Whereas the Section 21 of the Act
says that if a power to issue notification, order etc. is conferred then this power shall include the
power to add to, amend, vary or rescind such notification, order etc.

XXXIII. In State of Rajasthan v. Union of India24,it was held that whenever a question arises
whether an authority under the constitution has acted within the limits of its power or exceeded
it, it can certainly be decided by the court. Indeed, it would be its constitutional obligation to do
so. The constitution entrusts the court with the responsibility to interpret the constitution and
determine the validity or constitutionality of any executive action. This judgement thus allowed
the court to interpret any constitutional order to determine its constitutional validity of any
executive action i.e., action of president or governor. Pardon being an executive action comes
under the purview of President’s executive action can be interpreted for its constitutional
validity. In the present scenario, executive’s clemency order is marked with anomalies and
arbitrariness.

XXXIV.In Sampath Prakash v. State of Jammu & Kashmir25, the court ruled that, “This
provision is clearly a rule of interpretation which has been made applicable to the Constitution in
the same manner as it applies to any Central Act or Regulation. On the face of it,

24
AIR 1977 SC 1361
25
1969 AIR 1153, 1969 SCR (3) 574
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thesubmissionthatSection21cannotbeappliedto the interpretation of the Constitution will lead to

anomalies which can only be avoided by holding that the rule laid down in the section is fully
applicable to all provision of the constitution.” Thus, presidential pardon being a constitutional
subject can be interpreted and in presence of some anomalies can be revoked.

XXXV. According to this case26, the Government has to revoke or modify its order if the court
after interpreting the order is satisfied, on new or supervening conditions or facts coming to light,
that a revocation or modification had become necessary. Section 14 of the Act apparently vests a
wider power than that which the Central Govt. may have possessed' under the provisions of
Section 21 of the General Clauses Act. 1897 which is, by having been specifically mentioned in
section 14 of the Act, made applicable in such cases. The language of Section 14 of the Act,
however, makes it clear that the power under Section 14 is not necessarily subject to the
provisions of Section 21 of the General Clauses Act. This means that a revocation or
modification of an order of the Central Govt. is possible even without complying with the
restrictions laid down in Section 21 of the General Clause Act. Nevertheless, as the wider power
under Section 14 of the Act does not over-ride but exists "without prejudice to the provisions of
Section 21 of the General Clauses Act", we think that the correct interpretation of the provisions,
read together, would be that it is left to the courts in the exercise of the discretion, to exercise the
power read with provisions of Section 21 of the General Clauses Act of the General Clauses Act.
We think it will be a reasonable and judicious exercise of the power under Section 14 of the Act
to refer a case once before the judicial body for it to interpret the central or state government’s
act and if found to be arbitrary or backed by mala fide intentions, should be revoked or modified
without delay.

XXXVI. Thus in our current case of Nathan Kagan v. Union of Berkshire, the pardon granted to
Mr Alito by the President of the Union of Berkshire falling under the ambit of executive order
should be referred to the court for it to interpret it using Section 14 and 21 of the General Clause
Act, 1897 for the purpose of checking its constitutional validity and if in due process found to be
granted on arbitrary grounds, backed by mala fide intentions, based on wholly irrelevant
conditions or the relevant materials have been kept out of consideration, the court having the
required authority should revoke the pardon and uphold justice in an orderly fashion.

26
Ram Bali Ragbhar v. State of West Bengal & Ors., A.I.R 1975 SC 623
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PRAYER

Wherefore, in the lights of the facts stated, issues raised and arguments advanced, and
authorities cited, this court may be pleased to adjudge and declare that:

●Pardon granted by the President of the union of Berkshire is in clear violation of the
essence of article 72 of the constitution of Berkshire and thus needs an interpretation

●The presidential pardon granted to the respondent needs to be made subject to judicial
review in order to scrutinize its constitutional validity

●The Presidential pardon needs to be interpreted using article 14 and 21 of General

Clause Act, 1897 and revoked if found to be exercised by mala fide intentions or on
arbitrary grounds after judicial review

“And/Or to pass any other order(s) that this court may deem fit in the larger interest of
justice”

ALL OF WHICH IS RESPECTFULLY SUBMITTED

For this act of kindness, the PETITIONER shall duty bound forever pray.

Dated: 22nd of December 2018

S/d:

(Counsel for the PETITIONER)

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