This article has been written by Arpita Tripathy, from KIIT School of Law. This is an exhaustive article which deals with the question, can the President overrule the Supreme Court.
In India, there are three organs of the government, the legislature, executive and the judiciary. Many countries of the world follow a system of separation of powers. However, in India, this approach has not been fully adopted. A clear-cut separation of power is neither possible nor required. The Supreme Court is the highest court in the country. The appeals from the courts of the country are handled by it and protect the citizens from violation of their fundamental rights. The decisions of the Supreme Court can also be reviewed by the executive, that is, the President.
Separation of powers
Separation of powers means the three organs of the government should not invade the working territory of another organ. In simple words, the executive cannot work as a legislative or a judicial body, the judicial body cannot enact laws or act as an executive, the legislature cannot interpret laws, decide on cases or exercise executive powers. The main intention of this system is to make all the three organs independent of the powers vested in another organ so that they can work freely without any interference. This would also lead to a lack of transparency and arbitrariness.
In the 17th century, ‘Two Treaties of the Government‘ was penned by John Locke where he had suggested that there should not be any separation of power. The legislative should have the maximum power in its hand and monarchy should prevail in the country for efficient governance. He did not give regard to a separate judiciary and considered it a duty of the executive, that is, the King to do justice.
However, Fortescue, a political thinker of the contemporary times strongly opposed the idea of justice in the hands of the King and suggested a government system with an independent judiciary. Montesquieu, a French philosopher also supported the idea of an independent judiciary. He wanted to see a government that does not misuse its power, which could only be achieved by a carefully formulated system of checks and balances. He advocated the idea that the power of the legislature should not be such that it could easily abuse it and use it for its benefit and misuse it against the citizens. He also tried to explain that if the same person is vested with all the three powers then that might lead to gross injustice. He understood the importance of an independent judiciary for the efficient protection of the rights of the citizens. He believed that there can be no freedom without it.
In the United States of America where the powers of the three organs of the Government have not been rigidly separated. The American Constitution divides the three organs and clearly specifies their powers. The Constitution also makes it clear that a single individual cannot be a part of more than one organ. However, the legislature, executive and the judiciary do not work completely independent from each other. It follows a system of checks and balances so that the powers conferred on each organ is not grossly misused.
In a broader sense of the term, the separation of powers does not mean that each organ would strictly only adhere to their respective powers, it just means that there is no specific distinction between the organs. Just like the United States of America, India has three organs of the government and has also adopted the system of checks and balances. A system where there is complete separation of powers was proposed in the constituent assembly. However, the proposition was not accepted because it was felt that there is a need for the interdependence of all three organs on each other.
There is the demarcation of the powers of the organs. The State and the Central Legislature enact laws for the state and the whole country respectively. The Governor and the President act as an executive for a state and the whole nation respectively. The judiciary protects the rights of the citizens and guarantees justice. However, there are certain situations where there is an overlapping of power between the legislature, executive and the judiciary. The executive, that is, the President and the Governor have the power to pass an ordinance when the Parliament is not in session. The legislature has the power to impeach a President. The Judiciary has the power of judicial review. The President also has the power to pardon the death sentence given by the judiciary.
Powers of President
Under Article 54 of the Indian Constitution, the executive power has been vested in the President and has to be exercised by him or by the officers who are subordinate to him. The President has the power to appoint the Prime Minister, Chief Justice of India, the Attorney General of India, Comptroller and Auditor General of India, Governors of the State, Chairman of National Human Rights Commission, Chief Election Commissioners and Administrators of Union Territory. According to the same article, the President is also the head of the armed forces. He has the power to declare war and can also end the war for the maintenance of peace. The executive powers of the President are not unlimited and are subject to the recommendations by the Council of Ministers who are headed by the Prime Minister. The Council of Ministers will send a recommendation to the President for exercising his executive powers. The President can send back the recommendations to the Council of Ministers for reconsideration which they might or might not accept.
Ordinance making powers
When the Parliament is not in session then the President can formulate ordinances if he feels that the law has to be enacted on an emergency basis. The ordinance remains in force for 6 weeks after the assembling of the Parliamentary session. If the ordinance is rejected by both the houses of the Parliament then it cannot remain in force anymore. The ordinance has to follow the provisions of the Constitution.
Assent of the President
The President is the one who addresses the House after the conclusion of the general elections. He is the one who also addresses the Parliament during the budget session. The assent of the President is mandatory for every bill to be enacted. The approval of the President is also required for the approval of the money bill. For the creation of new states or changing the boundary of the states, the approval of the President is mandatory. If there are any changes in the name of a state then the assent of the President is needed. If a bill is sent to the President for his assent, but he feels that the bill can be reconsidered, then he can send back the bill to the Parliament for the same. However, if the bill is returned to the President without any changes then the President has to give the bill his assent. When an issue is not being able to be resolved by both the houses, and there is a deadlock between them, then the President can call for a joint sitting of both the houses. The head of the State also has the power to discontinue the House.
Power to declare emergency
The President can also declare an emergency under Article 352. National Emergency can be declared when there is an external conflict. An emergency can also be imposed and the President will direct the Government to look into public expenditure when there exists a financial crisis in the country. The provision of imposing the emergency is also open to the President when there is a constitutional breakdown in the country.
Judicial power of the President
The Executive head of the country, the President has judicial power as well. During ancient times, all the judicial decisions were taken by the head of the State, the King. But because of an increasing number of cases, judicial forums had to be created for speedy disposal and efficient disposal of those cases.
The judicial power of the President under Article 124(2) of the Constitution of India, includes the appointment of the judges of the Supreme Court which he has to decide after consultation with the judges of the Supreme Court and the judges of the High Court. Under Article 217(1) of the Constitution, the President with a consultation with the Governor of the State, the Chief Justice of India and the Chief Justice of the State. The President also has the power to rectify the judgment dictated by the court. He can even seek advice on any matter from the Supreme Court of the country.
The power of pardon has been vested in the head of the state. Historically, the head of the state or the monarchy always had the power to pardon, but there is no monarchy in India. During discussions in the Constituent Assembly Article 59 was inserted in the draft constitution. The article conferred the President as well as the Governors of the states with the power to grant pardon. However, clause 3 of Article 59 of the provision was opposed by the members of the Constituent Assembly. It was opposed on the grounds that the pardoning power should only be exercised by the President. It was also contended that, if Governors of the States are allowed to grant pardon, then this would be against federalism and the secularism that the country follows.
However, this argument was also debated on the ground that Governors should be the one to grant pardoning as Governors of the respective states because they know about their states and their laws in a better way than the President. The discussion was concluded after it was decided that the Governors would look after the pardoning cases which violate the state’s laws, if the offence is against central laws then the pardoning power would lie with the President. It was decided that in the matter of the death penalty, first, the case would go to the Governor if rejected the applications would move to the President.
Under Article 72 of the Constitution, the President has the power to forgive the accused of the crime, to impose a stay on the execution or to delay the execution of the accused. The act of forgiving the accused is called ‘pardon’. When an accused is granted a pardon by the President, then he has to be accepted as a person with no liability. The power of pardon conferred on the President cannot be used as a right by the accused but can be treated as just mercy on him. Once pardon has been granted, the accused can move freely with new opportunities in his hand. This accused is seen as innocent in the eyes of law.
Decision to be taken on the advice of CoMs
The pardoning power of the President is an executive action and has to be taken in consultation and advice of the Council of Ministers. The pardoning power is on the discretion of the President and is an executive act. The act of Pardon by the head of the state has not only been recognized in India but has also been duly recognized in the United States of America and the United Kingdom.
Scope of judicial review
It has been recognized that the power of Pardon even though is on the lines of the Constitution, but is still subject to the judicial review of the Supreme Court. The judicial review is based on the facts and circumstances of the case. The case, Kuljit Singh Alias Ranga v. Lt. Governor of Delhi, discussed the power conferred under Article 72 of the Constitution. The court said that the Article undoubtedly confers the power of reducing the sentence or pardoning the accused of any crime. But the use of power should be done according to the facts and circumstances of the case. The court also commented on the review of the pardon granted and said that, if the case has been pardoned by the President even then it is subject to judicial review.
However, in the case, Keher Singh v. Union of India, said that the power of the President under Article 72 is discretionary. The word ‘pardon’ in the Article is in itself very wide. Therefore, the President’s judgment in granting pardon should not be questioned.
The human mind can make mistakes. The judges might sometimes go in the wrong in their approach. When the mistake is relating to a life sentence, then it is essential that before, such a big decision on someone’s life is taken, the President or the head of the State be consulted. The power of pardon has been rightly conferred on the President who can change the decision of the Supreme Court.
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