71. Matters relating to, or connected with the election of a President or Vice-President:

(1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final.

(2) If the election of a person as President or Vice-President is declared void by Supreme Court, acts done by him in the exercise and performance of the powers and duties of the office of President or Vice-President, as the case may be, on or before the date of the decision of the Supreme Court not be invalidated by reason of that declaration.

(3) Subject to the provisions of this Constitution, Parliament may by law regulate any matter relating to or connected with the elections of a President or Vice-President.

(4) The election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.

COMMENTS

The Supreme Court has been given the exclusive authority to decide all doubts and disputes connected with the election of the President or the Vice-President. The election N.S. Reddy was challenged which was held on 19th July, 1977. The Supreme Court held that the Petitioner had no locus standi as per law to maintain the petition. The petitioner was not duly nominated nor was one who could claim to be so nominated and that this nomination paper was rightly rejected by the returning officer as required under the Presidential and Vice Presidential Elections Act, 1952.

In Indira Nehru Gandhi vs. Raj Narain case, the Supreme Court struck down Article 329-A Clause (4) of the Constitution on the ground that it violated the basic structure of the Constitution as Parliament could not exercise, judicial power for decisions of election disputes pending before the Supreme Court. The Supreme Court made the institution of President Election cannot be stayed till all vacancies in Parliament and State Legislatures are filled. Even if there is no elected member of the State Legislative Assembly who qualifies, the election of the President will be held.

72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases:

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence:

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment on sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub clause (a) of clause (1) shall affect the power conferred by law on any office of the Armed Forces of the Union to suspend, remit or commute a sentence passed by Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

COMMENTS

A pardon is an act of grace. It cannot be demanded as a matter of right. A pardon may be absolute or conditional. This power acts as safety valve against rigour of law which is very rigid and human action is very flexible. None can foresee all facets of human action or omission. No human system also of judicial administration can be free from imperfections.

Therefore, power of pardon can be exercised only by the head of executive. The pardoning power may be exercised at any time after commission of an offence either before legal proceedings are taken or during their pendency or either before or after conviction.

The President has wide power of clemency under the following categories:

1. Reprieve, i.e. a temporary suspension of punishment fixed by law;

2. Respite, i.e. postponement to the future of the execution of sentence.

3. Commutation, i.e. changing a punishment to one of a different sort than originally proposed; and

4. Remission, i.e. reduction of the amount of punishment without changing the character of punishment.

In Kehar Singh’s case the Supreme Court held that the President’s power under Article 72 is of executive character and the petitioner (condemned person to death) has no right to insist on oral hearing before the President. But the Court reiterated that the scope of Article 72 is judicially determinable and the President was not right in rejecting, Kehar Singh’s petition on the ground that he could not go into the merits of his conviction by the courts. However, this power of the President is not open to judicial review, except to the limited extent as in Mani Ram’s case. It should be exercised when the Presidential decision is irrational, arbitrary, discriminatory or mala fide. The power of clemency is to be exercised cautiously.

Following guidelines have been laid down for judicial review under Articles 72 and 161.

1. That the order has been passed without application of mind.

2. That the order is mala fide;

3. That the order has been passed on extraneous or wholly irrelevant consideration;

4. That the relevant materials have been kept out of consideration;

5. That the order suffers from arbitrariness.

However, the delay in deciding the mercy petition under Article 72/161 has come under criticism by the Supreme Court. And the Supreme Court commuted the death sentence into life imprisonment because the condemned person has already suffered a lot under apprehension of death.

However, while considering delay, the Court has overlooked the delay caused by the courts in disposal of cases and the misuse of clemency procedure by prisoners by way of multiple petitions before various authorities and courts.