Senior counsel Soli J. Sorabjee has opined that the power to grant pardon and to suspend, remit and commute sentences enjoyed by the President and Governors under Article 71 and Article 161 of the Constitution respectively, is subject to review by the Supreme Court and High Courts. Sorabjee, who was appointed amicus curiae to assist the Supreme Court made these submissions before a bench of Justice Arijit Pasayat and Justice S. H. Kapadia, as per a report in Hindustan Times (August 31, 2006.)
Soli J. Sorabjee: defining executive powers
Sorabjee said the courts could exercise their power of judicial review if the order under the relevant Articles had been passed arbitrarily, without application of mind or if it was malafide or it had been passed on extraneous or irrelevant considerations. The power of pardon or remission can be exercised upon discovery of an evident mistake in the judgment or undue harshness in the punishment imposed on the convict by the court. However, the President does not amend, modify or supersede the judicial record. "And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him (the convict),” he said, quoting from the apex court judgment in Kehar Singh’s case.