- Introduction
A pardon is an act of grace. It cannot be demanded as a matter of right. A pardon removes the punishment and places the offender in the same position as if he had never committed the offence. The President’s power to pardon deals with providing justice which is essentially a function of the judiciary. The reasons for this interference of the executive in the functions of the judiciary have to be explored, understood and appreciated. The executive gives an absolute power of pardon to the executive. The likelihood of abuse of such a power is immense. Therefore, an analysis of case law with regard to presidential pardon is very important. Pardon is a concept based on mercy, therefore, mercy as a concept has to be studied and the question why mercy is vested with the executive and not with the judiciary has to be looked into. Another aspect is to look at the wording of Article 72 and 161 that deals with power of President and Governor respectively, It is very important to note the way the Courts interpret various Articles and what was the intention behind framing such an Article. In addition to this there are other issues as well like foreigners applying for pardon, judicial review of pardon and the guidelines for exercise of pardon power.
- HISTORICAL GENESIS OF CONCEPT OF PARDON
Historically, the institution of clemency seems to have had more to do with power than justice. The ancient Greeks used a form of clemency, but that power rested with the people rather than with the sovereign. Before a person could obtain clemency under the Greek process they needed a petition supported by at least 6,000 people in a secret poll[1]. Because of the difficulty in getting the required support for such a petition, clemency was not often granted.
In Ancient Rome, the clemency power was often used for political reasons rather than justice or mercy. The executive would pardon a person to enhance his own popularity or to appease the people. A well-known example of this is the Biblical story in which Pontious Pilate pardoned Barabbas rather than Jesus. Another ancient practice similar to the power of pardon existed in ancient Rome, where instead of executing an entire army of transgressors, the Romans would execute every tenth condemned troop member
Nevertheless, the possible analogies that may be drawn to the above-mentioned ancient practices of pardoning accused individuals, the concept of pardon as enshrined in the Indian Constitution can most realistically be said to be derived from the British tradition of granting mercy. Granting mercy has historically been the personal prerogative of the Crown, exercised by the monarch on the basis of advice from the Secretary of State for the Home Department.
This practice is based on the understanding that the sovereign possesses the divine right and hence, can exercise this prerogative on the ground of humanity exercised by those divine. While under the British system, the monarch is the Head of the State, under the Indian Constitution, it is the President who is deemed to be the Head of the State, which would explain the reason why the power to grant pardon has been vested in him, along with the Governors of States, who act in a manner similar to the President at the level of the states.
- PARDONING POWER IN DIFFERENT COUNTRIES
At Common law, pardon was an act of mercy whereby the king ‘forgave any crime, offence, punishment, execution, right, title, debt, or duty.’ This power was absolute, unfettered and not subject to any judicial scrutiny.[2]There is no time specified to grant pardon, it can be done before conviction as well as after it. The Crown also has the power to grant reprieve as well, it may just temporarily suspend the execution of the sentence; or may remit the whole or part of the penalty.[3] However, it could hardly survive in its unrestrained nature in the democratic systems of State.
The modern practice of pardoning find its origin in the British system in which it was a Royal Prerogative of the King to forgive. It also finds mention in the code of Hammurabi, a series of edicts that were developed in Babylon nearly 4,000 years ago. During the medieval period, pardon was extensively used as a method of reducing overcrowding in prisons during war, political revolt etc. In modern democratic countries, the power to grant pardon or clemency is vested in their executive heads.
The President derives this power to grant pardon from Art. II of US Constitution. This power is unlimited and can be exercised in case of all the offences with the exception of impeachment. There is no time frame for the exercise of this power; it may be exercised at any time after the commission of the suit and there is no Judicial review.
In UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial advice. In Canada, pardons are considered by the National Parole Board under the Criminal Records Act. In India, the power to grant pardon is conferred upon the President of India and the Governors of States under Articles 72 and 161 of the Constitution of India.
By the virtue of Article 45 of the Pakistan’s Constitution, the President has an absolute power to grant pardon, reprieve, respite & remit, suspend or commute any sentence passed by any court, tribunal or authority. The power cannot be questioned.
- PARDONING POWER IN INDIA
In India, the power to pardon is a part of the Constitutional scheme. The Constitution of India conferred the power on the President of India and the Governors of the States by Article 72 and 161 respectfully.
Having regard to the language used in Article 72 and 161 of the Indian Constitution, the framers of the Indian Constitution intended to confer on the President and the Governors, within their respective spheres, the same power of pardon both in the nature and effect, as is enjoyed by the Sovereign in Great Britain and the President in the United States. Therefore, in India also the pardoning power can be exercised before, during or after trial.[4] A pardon may be full, limited or conditional. (i) A full pardon wipes out the offence in the eyes of law and rescinds the sentence as well as the conviction, and frees the convicted person from serving any uncompleted term of imprisonment or from paying any unpaid fine.[5](ii) A pardon is conditional where it does not become operative until the grantee has performed some specified act, or where it has become void when some specified event happens.
Article 72 of the Constitution gives that the President shall have the power to grant pardon[6], reprieve[7], respite[8]or remission[9] of punishment and to suspend, remit or commute[10] the sentence of any person convicted of an offence in (a) a case tried by court martial (b) a case relating to a law to which the executive power of the Union extends. (c) The sentence awarded is of death.
Under Article 161 the Governor enjoys similar and concurrent powers in all matters pertaining to a law to which the executive power of the State extends, or a case in which the death sentence has been awarded.
By the virtue of these articles the President and Governor can grant pardon but the materialistic fact is that whether such power is an absolute one because the word “Shall” in clause (1) of the Article is ambiguous. Apart from it was also held that this power of pardon shall be exercised by the President and Governor on the advice of Council of Ministers.
- OBJECT OF PARDONING POWER
The object of pardoning power is to correct possible judicial errors, for no system of judicial administration can be free from imperfections. ‘Fiat justitia per eat mundus’ -which means let justice be done even if the world shall perish would have remained a maxim only in absence of pardoning power being vested in the executive. The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences.
- NATURE AND EXTENT OF PARDONING POWER
It is very important to look at three words to understand the correct interpretation of the article. These three words are ‘punishment’, ‘sentence’ and ‘offence’. The first two words show that the pardon by the President will save a person from the consequences of an offence and from a punishment as well. The word ‘offence’ used makes it quite evident that that the punishment and sentence we spoke about are in respect of the offence committed. This implies that the punishment which is supposed to be pardoned has to be in respect of an offence and not for any simple breach of a condition.
The reasoning that is given for the above said statement is derived from the meaning of the word offence as it is given in the General Clauses Act, 1897.[11]It is difficult to say that the same definition cannot be applied to Art.72 as well. It has been said that in reality it is this definition only which is used in this Article. It is said that the power of pardon that has been granted, can be used in following cases:
- In respect of an act which, in the eyes of law, is an offence
- Which offence is in respect of a matter over which the executive power of the Union extends and,
- For which punishment has already been adjudged.
It is a well established principle that a person can be sentenced or punished only when he has been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes of the law.[12]Thus if a person has not been given a chance of a fair trial or a proper investigation has not been carried out against that person, then there is no reason why that person should be given a pardon, because he is still innocent. Therefore, it is important to note that the pardoning power can be exercised only in the case of a convicted person only.
However, in some of the cases the Court has said that the pardon can be granted even before conviction or trial by a Court.This principle was laid down in the case of In Re: Maddela Yerra Channugadu and Ors[13]it was said in the case, “The pardon power includes not only that of granting absolute and unconditional pardons, but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of Bombay[14]and and RamdeoChauhan v. State of Assam[15].
Looking at another situation, if the trial of a person is held not by courts but by a tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an offence? The general situation will be that of non-compliance of the terms of a certain contract and therefore, termination of the same. The answer would be no, as in such a case the term, ‘breach of conditions’ is used and not the word offence. To be more precise, the word offence can be used only in the case when the act done falls within the scope of the word offence as it is defined in the Indian Penal Code. In addition to this it is important to note that the person should be inquired under Code of Criminal Procedure, because if it is done under an Act which does not characterize the act as an offence, then the word punishment would not hold the same meaning as it is meant to be in Art.72. This issue has been discussed in Maqbool Hussain v. State of Bombay[16]
The same issue was discussed in S.A. Venkataraman v. Union of India[17] the Court in this case held that before Article 20(2) could be invoked, it is essential that the earlier prosecution must have been under the Act which created that offence. After looking at these two cases it is evident that before the question of the exercise of the power of the President to grant pardons can arise the person to whom pardon is granted must have been awarded punishment or sentenced by a competent court of law or judicial tribunal.
An ordinary reading of these provisions shows that there is complete silence regarding the factors which must be taken into account by the President and the Governor while exercising the power to pardon. It is reasonable to assume that this silence was deliberate, since the power to pardon has historically been in the nature of a prerogative. It requires to be examined how this prerogative of the executive can be reconciled with the functioning of the other branches of the State, namely the legislature and the judiciary, and whether there are any areas of conflict.Though a textual interpretation of the Constitution fails to convince that the framers of the Constitution intended for the advice of the Council of Ministers to be binding on the President and Governors while exercising their pardoning powers, the judicial interpretation of the Constitution suggests an entirely different proposition. The Supreme Court in Samsher Singh v. State of Punjab[18] a seven-judge bench stated that the satisfaction of the President or the Governor required by the Constitution is not their personal satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice the President and the Governor exercise their powers and functions. The Hon’ble Supreme Court in the case of Maru Ram v. Union of India[19]ruled that the President and the Governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgment but in accordance with the aid and advice of the ministers. This legal position was re-affirmed by this Hon’ble Court in the case of Kehar Singh v. Union of India.[20]With regard to the guidelines for the exercise of pardoning power under Article 72, the judiciary has been reluctant to impose guidelines on the executive for exercising the power to pardon in most cases, with a few exceptions. In Kuljit Singh v. Lt. Governor of Delhi[21] the Supreme Court expressed the view that the pardoning power of the President is a wholesome power that should be exercised ‘as the justice of a case may require’, and that it would be undesirable to limit it by way of judicially- evolved constraints. In Kehar Singh, the Supreme Court stated that the power under Article 72 should be construed in the widest possible manner without the Court interfering to lay down guidelines of any sort.
In India, it may be noted that the vesting of this power in the President and Governors, as opposed to the Prime Minister or Legislatures, may have been deliberate, so as to prevent the grant of pardon being made open to any sort of legislative debate. It was held in Maru Ram’s case that the constitutional power under Article 72 and Article 161 cannot be fettered by any statutory provision such as sections 432-433 and 433-A of the Criminal Procedure Code and the said power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or prison rules. The President “acts in a wholly different plane from that in which the Court acted. He acts under a Constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it”. The President while exercising the power under Article 72 can go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court. The power under Article 72 enables the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relied falling within that power. He can, on scrutiny of the evidence on record in the criminal case, come to a different conclusion from that accorded by the Court with regard to the guilt of, and sentence imposed on the accused. In doing so, the President does not amend or modify or supersede the judicial record which remains intact, and undisturbed. Therefore, there is no interference with the functions of the judiciary.
It may be emphasised that the power of the president and the Governor under Art. 72 and 161 are essentially executive powers and functions and there is absolutely no question of principle of natural justice being followed. This means that there is no obligation on the president or the Governor to hear the party concerned or his Counsel.
- EXECUTIVE POWER TO PARDON AND JUDICIAL REVIEW
In Maru Ram v. Union of India[22], the Supreme Court expressely stated that the power to pardon, commutation and release under Article 72( also under Article 161) cannot run riot and must keep sensibly to a steady course and that public power “ shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelinefor fair and equal execution are the guarantors of the valid play of power.” Agreeging with Maru Ram in Kehar Singh v. Union of India[23] the Court reiterated: “it appears to us clear that the question as to the area of the Presidents’s power under Article 72 falls squarely within the judicial doamin and can be examined by the Court of Judicial review.” While these two cases did not call for judicial intervention, relying on the law laid down in them, the Supreme Court invalidated the remission of sentence by the Governor of U.P. In Swaran Singh v. State of U.P.[24] because some material facts were not brought to the knowledge of the Governor under Article 161. Rejecting the argument that Governor’s action under Article 161 is beyond judicial scrutiny the Court held “ If such power was exercised arbitrarily, malafide or in absolute disregard of the finger canons of the constitutionalism, the byproduct order cannot get the approval of law and in such cases judicial hand must be stretched to it”. The Governor’s power of pardon under Article 161 runs parallel to that of the President under Article 72 and thus several cases based on the same have a bearing on the Presidential Power under Article 72. Moreover, judgments dealing with Article 72 have simultaneously deal with Article 161 and vice-versa. In the early case of K.M. Nanavati v State of Bombay[25]a reprieve granted by the Governor under Article 161 was held constitutionally invalid since it conflicted with the rules made by the Supreme Court under Article 145[26] of the Constitution.
In Satpal v State of Haryana[27] 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 behaviour while he underwent the sentence. The Court held “not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational”.
In Dhananjoy Chaterjee v State of West Bengal[28] the Supreme Court held that an order passed by the Governor under Article 161 is subject to judicial review and he shall not be deprived of an opportunity to exercise his powers in a fair and just manner because court felt that all material facts including the mitigating factors were not placed before the Governor. The Court directed the respondent authorities to put up the mercy petition again to the Governor and bring all relevant facts to the notice of the Governor.
Later in Epuru Sudhakar v. Government of Andhra Pradesh[29]Pasayat, J. has laid down that judicial review under Articles 72 and 161 is available on the following grounds:-
(a) That the order has been passed without application of mind; (b) That the order is mala fide; (c) That the order has been passed on extraneous or wholly irrelevant considerations; (d) That the order suffers from arbitrariness.
He also emphasized that for effective exercise of judicial review reasons for the exercise of power under these articles must also be provided. Besides, he held that pardon obtained on the basis of manifest mistake or fraud can also be rescinded or cancelled. Thus, the exercise of President’s power under Article 72 and Governor under Article 161 is subject to judicial review like any other power of the executive.
- CONCLUSION
As seen that Presidential pardon is one of the powers that been given to the executive by the Constitution so it is very important to have this power in Constitution of all the countries. The reason for this being that there should be some authority which should be present to keep a check and rectify the mistakes made by the judiciary. The legislature can also do this, through a process of passing a law. Moreover process of granting pardon is simpler but because of the lethargy of the Government and political considerations, disposal of mercy petitions is delayed. Therefore, there is an urgent need to make amendment in law of pardoning to make sure that clemency petitions are disposed quickly. There should be a fixed time limit for deciding on clemency pleas.
There should be a time frame within which the
executive should be asked to decide over cases in order to prevent undue trauma
to the applicant and his family members and back logging of cases. Regarding
the judicial review debate, pardoning power should not be absolute as well as
Judiciary should not interfere too much in exercise of this power. As judicial
review is a basic structure of our Constitution, pardoning power should be
subjected to limited judicial review. If this power is exercised properly and
not misused by executive, it will certainly prove useful to remove the flaws of
the judiciary.
[1] Kumar Parul, The Executive Power to Pardon: Dilemmas of the Constitutional Discourse, 2NUJS L.Rev.(2009)
[2]Coke, Edward. The Third Part of the Institutes of the Laws of England. 4th ed. London (1669
[3]Naveen Thakur, President’s Power to Grant Pardon in Case of a Death Sentence- Whether it is to be Unfettered Discretion? 1999 Cri LJ 101
[4] Channugadu, Re, A.I.R. 1954 Mad 911, 917
[5] Durga Das Basu, Commentary on the Constitution of India, Eighth Edition, LexisNexis Butterworths, New Delhi, 2008 at p. 4457
[6] Completely absolves the offender
[7] Temporary suspension of sentence
[8] Awarding lesser punishment on special ground
[9] Reducing the amount of sentence without changing its character
[10] Substitution to one form to another
[11] The definition that has been given in the Act is, “ An act or omission made punishable by law for the time being in force”.
[12] Article 372, Constitution of India.
[13] MANU/TN/0394/1954
[14] AIR 1981 SC 112
[15] (2001) 5 SCC 714
[16] AIR 1953 SC 325
[17] AIR 1964 SC 375
[18] (1974)2 SCC 831
[19] (1981)1 SCC 107
[20] AIR 1989 SC 653
[21] (1982)1 SCC 417
[22] (1981) 1 SCC 107: AIR 1980 SC 2147, 2170
[23] (1989) 1 SCC 204
[24] (1998) 4 SCC 75, 79: AIR 1998 SC 2026
[25] AIR 1961 SC 112
[26] Subject to the provisions of any law made by parliament the Supreme Court may from time to time, with the approval of the president, make rules for regulating the practice and procedure of the court
[27] AIR 2000 SC 1702
[28] (2004) 9 SCC 751
[29] (2006) 8 SCC 161: AIR 2006 SC 3385, 3395
This article is written by Arpita Sahu.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.
