This article has been written by Mehernaz Contractor of Siddharth Law College, Mumbai. This article provides a detailed overview of Article 72 of the Indian Constitution. It deals with the pardoning powers of the President.
It has been published by Rachit Garg.
Introduction
The human mind is prone to error and can sometimes make mistakes. Judges of courts are no exception to this. They can make an error while delivering a judgment. Justice may not be properly served due to such decisions. The power of pardon can protect people on whom injustice has been done. Pardoning power is entrusted to a superior authority other than the judicial administration so that a flawed judicial process can be corrected. A death sentence or life imprisonment is a much bigger punishment, and no innocent person should suffer from it. A person should not be kept in prison much longer than what is required because that can not only harm the person but also the community.
During British rule, the power of pardon was vested with the British government. Previously, pardon, an act of mercy, was contained in Section 295 of the Government of India Act, 1935. After the Indian Constitution came into force, the power of pardon is contained in Article 72.
Pardoning powers of the President : Article 72 of the Indian Constitution
Pardon is defined as the power exercised by the executive authority to save a person from punishment. Pardoning powers are vested with the President under Article 72 of the Indian Constitution. Article 72 states that the President has the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person. Only the rarest of the rarest cases are looked upon by the President. The President should not exercise his powers in a malafide or an arbitrary manner. The President must examine the evidence of the criminal case and then decide whether he should grant a pardon.
The power of pardon can be exercised by the President on persons convicted of an offence and not on persons under trial. Pardoning power can be exercised by the President as stated below:
- Pardon can be granted after the person is convicted.
- Pardon can be granted during the pendency of an appeal to a higher court, but a sentence cannot be suspended during the pendency of an appeal to the Supreme Court.
The President must look at various factors while considering the mercy petition, such as:
- Age of the prisoner
- Period of imprisonment undergone and remaining period
- The health of the prisoner
- Interests of society
- Prison record
- The seriousness of the offence
When can the President use his Pardoning Powers
The President shall have the power to grant pardon to any person convicted of any offence in all cases:
- Where the punishment was given by a Court Martial
- Where the sentence is a death sentence
- Where the punishment is for an offence which is related to a matter which can be decided by the executive power of the Union
The President cannot act as per his wishes while granting a pardon. He must be guided by the Home Minister and the Council of Ministers before taking any decision. The President must act on the advice provided by the ministers under Article 74 of the Constitution.
Advantages of pardoning power of the President
There are several advantages of pardoning the power of the President, such as:
- An innocent person may be saved from the punishment if justice was not properly served to him.
- Errors or mistakes can be corrected in the judicial process.
- To suspend a punishment if the President considers the punishment as unduly harsh.
What are the types of pardons that can be granted under Article 72 of the Indian Constitution
Five types of pardons can be granted under Article 72 of the Indian Constitution, as stated below:
Pardon
When the person is granted a pardon by the President, the conviction, sentence, and all the restrictions on him are removed. After being granted pardon, it appears that there was no criminal record on the person, and he is free to live in society.
Commute
When the President uses this power, one form of punishment is substituted with another. For example, rigorous imprisonment can be commuted to simple imprisonment. The conviction will stay on the record of the accused.
Respite
When the President uses this power, the type of punishment is reduced to a lesser sentence due to some special circumstances of the convict, such as physical disability or pregnancy of the offender.
Reprieve
When the President uses this power, the punishment or the sentence is delayed for a temporary period. It is done so that the President can have time to decide about pardoning the sentence.
Remission
When the President uses this power, the type of punishment remains the same, but the period of punishment is reduced. Rigorous imprisonment of ten years can be reduced to five years under this power.
Judicial review of the pardoning power of the President
Judicial review means the power of the court to review the functions of the executive and legislative administration. The pardoning powers of the President are subject to judicial review by the court so that the President does not make a decision that is irrational, arbitrary, or unreasonable. This was discussed in brief in the case of Maru Ram v. Union of India (1980). The Supreme Court in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) held that courts do not have the power to correct the administrative decisions. It merely reviews how the decision was made. The power of judicial review is very limited. The President cannot be asked to state the reasons for which the decision has been made. The President should not exercise his power beyond his authority.
The procedure for filing a mercy petition
The following procedure must be followed while filing a mercy petition with the President:
- The convict is allowed to file a mercy petition within seven days after the date on which the Superintendent of Jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court.
- The petition is presented to the President, after which the President seeks the advice of the cabinet ministers. The ministers take the advice of the state concerned.
- The President’s pardon is subjected to judicial review. The court cannot interfere with the decision of the President if the President’s decision was not arbitrary or unreasonable.
Delay in the disposal of mercy petition
The President should not take much time to decide on the petitions. The Supreme Court in the case of Devender Pal Singh Bhullar v. State (NCT) of Delhi (2013) held that if there is undue delay in the disposal of the petition which is not caused by the accused’s fault, then the court can interfere in the decision of the petition and can convert the death sentence into life imprisonment. But this does not apply in the cases of terrorists. This thing got reversed in the case of Yakub Memon v. State of Maharashtra (2013). The pardoning power of the President is a constitutional duty, and it must be exercised within a reasonable amount of time.
Headliner cases where the President used his pardoning power
There are several instances where the President has used his pardoning power as stated below:
- Govindasamy was sentenced to death for the murder of his uncle, aunt, and three cousins over a property dispute. His mercy petition was rejected three times, but in 2009 his death sentence was reduced to life imprisonment by the President.
- Bantu, a resident of Uttar Pradesh raped and killed a five-year-old girl. He was awarded the death sentence by the High Court and has been on death row since 2008. His mercy petition was accepted by the President in 2012.
- Piara Singh, Sarabjit Singh, Gurdev Singh, and Satnam Singh had killed 17 people at a family function. They were awarded death sentences for offences of attempt to murder, murder and criminal conspiracy. The President reduced the death sentence to life imprisonment with a condition that they will not be granted remission during their imprisonment.
- Shobhit Chamar was given the death sentence for killing six members of his landlord’s family, including two children. His mercy petition was rejected twice by the President. But his mercy petition was considered for the third time due to his old age. The President commuted his sentence with a condition that he would not be granted parole during his imprisonment.
- Dharmendra Singh and his brother Narendra Singh killed five members of a family and assaulted a girl. Narendra Singh had failed to assault the girl while she was coming back from school, so he conspired with his brother to kill all the members of the family. Their mercy petitions were accepted by the President.
Conclusion
The pardoning power is a constitutional power vested with the President and must be exercised with care. This power is subjected to judicial review under the courts. The pardoning power is to be utilized under special circumstances when the President feels that the court made some errors in giving its judgment. The President accepts mercy petitions upon proper consultation and advice from the Council of Ministers. The President cannot exercise this pardoning power according to his wishes or his own whims and fancies.
Frequently Asked Questions (FAQs)
What are the pardoning powers of the President?
Answer. The President under Article 72 of the Indian Constitution shall have the power to grant pardons, reprieves, respites, remissions, or commute the sentence of any person where such punishment is a death sentence, the punishment given by Court Martial or punishment is for an offence for which the executive power of the Union is exercised.
If the President grants a pardon to a death sentence in India, can that decision of the President be challenged by someone? Can that case be reopened in the Supreme Court?
Answer. Even though the pardoning power of the President is subject to judicial review, the decision of the President cannot be challenged by anyone. The President is under no obligatory duty to answer on what grounds his decision was made. The case can be reopened in the Supreme Court if it is found that the President has used his pardoning power arbitrarily or unreasonably.
On what grounds can the President of India pardon a sentence given by a Court? Is it not ‘ justice denied’ if this is done without a strong reason?
Answer. No grounds or guidelines are mentioned in the pardoning powers of the President. The President is considered the executive head of the Union, so he can exercise his powers by taking reasonable factors in mind. Justice is not denied as the President is not randomly exercising his pardoning powers. He does that in consultation with the Home Minister and council of ministers.
Should the power to pardon be limited or abolished?
Answer. No system is free from errors, and so by providing pardoning powers the mistakes or errors can be corrected. This pardoning power should be limited so that the President cannot misuse his powers.
Is the pardoning power of the President of India a judicial power or an executive power?
Answer. The pardoning power of the President is contained in Article 72 of the Indian Constitution. This Article is contained under Part V: the Union of the Constitution which is titled the Executive. Also, the President is the executive head of the Union, so this pardoning power is executive power.
Is the power of the President of India under Article 72 a discretionary power or does he need to act as per the advice tendered by the council of ministers?
Answer. The President cannot exercise his pardoning power as per his wish. He must take into account the advice given to him by the Council of Ministers. If he is not satisfied with the advice of the Union ministers, he sends back the file for reconsideration to the ministry after which the recommendations of the ministry are again sent to the President.
Why does the Constitution of India give pardoning power to the President?
Answer. The President is considered a superior authority as he is the executive head of the Union, and he is not involved in the judicial process. He can make unbiased decisions based on the socio-economic conditions of the accused so he has been given the pardoning power by the Constitution of India.
References
- http://magazines.odisha.gov.in/Orissareview/2012/oct/engpdf/58-63.pdf
- https://prepp.in/news/e-492-pardoning-powers-of-president-indian-polity-upsc-notes
- https://articles.manupatra.com/article-details/Presidential-Pardon-Can-it-be-Subjected-to-Judicial-Scrutiny
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