This article is written by Kartikey Mishra, a student of Lloyd Law College, Greater Noida.

“Judges must enforce the laws, whatever they be, and decide according to the best of their lights; but the laws, are not always just, and the lights are not always luminous.”

                                                                                           –Justice V.R. Krishna Iyer

The clemency power of the executive has a unique nature which changes with time. In the traditional view it was a sovereign power in the hand of her majesty; from the political point of view it is a residuary power and from humanitarian approach, it is a path to ensure justice and mercy. The Constitution of India envisaged the clemency power of executive under Article 72 and Article 161.

The purpose of this paper is to enlighten the reader about the fundamentals of clemency power, the historical background, the purpose of clemency power and its nature with reference to India, United States and U.K., the paper will also discuss the recent doubts which has arisen on clemency powers in amid of Nibhya Case and the paper will conclude by pointing out unyielding recommendations based on the comparative study for India’s Executive Clemency Power.

Mercy jurisprudence is a part of an evolving standard of decency, which is the hallmark of the society.[1] The President may grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of any person convicted of any offence.[2]

The power of clemency or pardon can be invoked in three situations; first, in cases where punishment and sentence are by a court-martial; secondly, in cases where the punishment or sentence is for an offence where parliament bestow jurisdiction to make law; and, thirdly, in all the cases of a death sentence.[3]

The act of giving pardon is not a private ‘act of grace’. The power to grant is constitutionally reposed in the head of the State and, therefore, constitutes a solemn constitutional responsibility.[4]

The Power of pardon continues to exist in the constitutional and democratic setup to prevent the injustice in the society which is caused due to draconian law or due to miscarriage in process of justice; consequently, the necessity vesting such power in an authority other than the judiciary has always been recognized”.[5]

Fundamentals

The Clemency power cannot be understood properly without getting the meaning of the Clemency and other related terms.

According to Merriam Webster Dictionary, the term ‘clemency’ means having moderate nature especially to the severity of punishment which is due.[6]  The dictionary definition of ‘pardon’ is, it is an act of grace, proceeding from the power conferred with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.[7] ‘Reprieve’ means temporary suspension of the punishment fixed by law.[8] ‘Respite’ is postponement to the future the execution of a sentence.[9] ‘Commutation’ is changing the punishment from what was originally proposed[10] and ‘remission’ is reducing the amount of punishment without changing the character or nature of the punishment.[11]  

Historical background

It is a common truism that everything which is in existence today owes its roots from the past and the pardon power is no exception here. 

The practice of Pardoning was prevalent across the globe but in the case of China, it is not clear.[12]

The pardoning power owes its genesis from Ancient Athens society, where a practice called adeia was prevalent, where if a person wants immunity from the punishment then he requires 6000 votes of the citizen.[13]

The concept of pardon was present in the Romans society also, it was different from Athens. The Romans used the power of pardon as modus operandi to control the masses by killing a handful. Romans chose to execute every tenth army troops of transgressors and by doing this they generated fear and discipline in the remaining ones.[14] This practice saved the troops and also upheld strategically motivated clemency.

The stand of India in the context of pardon was different from Romans and Athens. In India, the king was considered as ‘the fountainhead of justice’ and the life of a person was totally in the hand of the king, he may punish him or he may pardon him but some sections of society were not given death punishment like the Brahmin offender and old man and child below 5 years.[15]

The above paragraph shows that in India, the pardon power was used scrupulously by the King and also the king does not act on his own conscious because it may bring injustice in the society.[16] 

At the time of British rule, the Power of Pardon was vested in the British monarch. In common law system, the act of giving pardon is an act of mercy in which the king forgives any crime committed by the accused.[17]

So, it can be said that the practice of giving pardon to the people is not a naive concept and its root can be easily traced from an ancient society.  

Purpose of Clemency Power

As mentioned in the above paragraph that power of pardon was in the hand of the monarch, but now in the contemporary common law system, we are in ‘democratic republic’ so it raises a query in mind i.e. purpose of clemency power in contemporary time.   

There are different views which give their reasoning about the existence of clemency in contemporary time. One of the views is the Hegelian view which promotes that pardon power is justified because they enhance justice in society. In their opinion, there are certain cases where justice may not be served due to the unduly harsh nature of the sentence or due to an individual being sentenced wrongly so it gives an option to correct it.[18]

The second view comes from those who believe in rehabilitation and redemption theory. They believe that the person must be given second chance he may change his habits and can become a good person and their reasoning is based on public welfare and compassion.[19]

The clemency power of the executive exists to rectify the undue harshness or evident mistake made in the enforcement of criminal law. The administration of justice by courts does not need to always be wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest some alternative authority to someone other than the court’s power to enhance or avoid particular criminal judgments. It is a check entrusted to the executive for special cases, but whoever is bestowed with these power must able to exercise it with his discretion.[20]

The Supreme Court of India believes that personal life and liberty of an individual is paramount in society. The judicial error cannot be excluded from the system due to human imperfection, so, an alternative resource has been provided in the Constitution of India in the form of the executive power to pardon.[21] 

The clemency power has been recognized by almost every civilized nation and has therefore provided for the clemency power which is to be utilized whenever the constitution as well as humanity demands for it. The power of clemency, to be exercised by some department or functionary of a government, without this power a country would be most imperfect and scarce in its political principles, and in that attribute of a deity whose judgments are always tempered with mercy.[22]

Mercy is not the subject of legal rights. It begins where legal rights end[23] so, whenever there is an error in the judicial process and no other legal alternative is left with the convicted person, then he may choose the other path i.e. Executive pardon.  

Clemency Power and Judiciary in India, US and UK 

Clemency Power in England

In England, this power has been exercised from time immemorial and has always been regarded as a necessary attribute of sovereignty. 

The clemency power in England is vested in the crown. In contemporary time, exercising the Royal prerogative is not easy, the crown cannot act on his conscience, he had to go with the aid and advice of the council of ministers i.e. the Secretary of State within England and Wales, the first minister of Scotland, or the secretary of Northern Ireland.[24] In case of the Armed Force convict, the Secretary of State for Defences will advise the crown.[25] 

The pardoning power can be succinctly outlined as:

1. Release of prisoner unconditionally with full restoration of civil rights;
2. Release of prisoner conditionally without restoration of civil rights;
3. Restoring the rights after the expiration of the sentence.[26] 

In England the pardoning power can be exercised at any time after the commission of an offence, either before legal proceedings take place or during their pendency or either before or after conviction. Pardon may be in general grated either before or after conviction but no pardon is pleadable in bar of impeachment by commons.[27]  

A pardon may be absolute or conditional. It is conditional where it does not become operative until the grantee performs a certain specified act or avoids certain act.[28]    

For many years the clemency power was an absolute power of the monarch to pardon an individual for a crime committed by the individual, later on, the power was delegated in the hand of the judiciary and the Sovereign’s ministers.[29] Once the pardon is granted the decision cannot be changed. However, there are certain limits on using the discretionary power to pardon, but no legislative power can limit or control the power to pardon.[30] 

Impact of Judiciary on Clemency Power in UK

In Council of Civil Service Unions v. Minister for the Civil Service,[31] popularly known as GCHQ case, where the person in service asked for the judicial review of the prerogative was challenged on the ground of unfairness so, the House of Lords confirmed that judicial review can be sought on the nature of government power but certain things cannot come under judicial review like foreign policy and national security defences, mercy, honors, dissolution of parliament and appointed by minister powers are considered outside the ambit of judicial review.  

So, the power to pardon, reprieve etc. is no more treated as the prerogative of the Sovereign and these prerogatives are open for judicial review to some extent.[32]

Clemency Power in the United States of America

In the U.S. the clemency power is given under Article II, section 2 of the constitution.

The wording of constitution is “…he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”[33]

The pardon power of the president extends to all offences against the United States, except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer. The power to pardon can be absolute and conditional. It was assumed way back that the power of pardon includes the pardon of specific classes or communities, which is usually exercised with the help of proclamation of General Amnesty. For instance, Washington gave general amnesty in 1795, Theodore Roosevelt gave general amnesty to Aguinaldo’s followers in around 1902.[34] 

The modern concept of the clemency power in the US suggests that neither Congress nor the Courts can violate or take away the President‘s power to pardon. The power to pardon is an enumerated power of the Constitution and its limitations, if any, must be found in the Constitution itself,[35] which is mentioned in article II that it cannot be used in case of Impeachment.  

Impact of Judiciary on Pardoning Power in the US

In the United States v. Wilson,[36] the court emphasized the power to grant pardon is an act of grace and the reasoning of the court behind this was the similarity between US and U.K. procedure of granting the pardon. Later in the case of Biddle v. Perovich,[37] the Supreme Court changed its views and held that a pardon is not a private act of grace from an individual who possesses that power rather it’s a part of the constitutional scheme. 

In the leading case on pardon power is Ex parte Garland, [38] where the act of congress was challenged in which they put a prerequisite to practice in the federal court and that i.e. “the person must take oath asserting that he had never voluntarily borne arms against the United States…” President Johnson had granted the full pardon to Garland. The issue which was before the court was whether Garland was entitled to practice in the federal courts despite the act of Congress just mentioned after getting the pardon from, President. The court opined about the nature and kind of pardon which is generally grated. 

Whenever pardon is granted then it is for both the punishment prescribed for the offence and the guilt of the offender:

1. When the pardon is full, then it releases the offender from all guilt and makes him innocent in the eye of law. 
2. When the pardon is granted before conviction, it precludes the person from all the penalties and disabilities. 
3. If the pardon is granted after conviction, it removes all the penalties and disabilities, and restores all his civil rights; it will make him a new man, and gives him a new credit and capacity in the society. 

So, the pardoning power of the president has now emerged as a Constitutional Convention which is bestowed exclusively on the President, and to use this power, the president is not required to ask anyone before using that power. But the same freedom of using the power based on the merits of the case puts the responsibility on the president. 

Clemency Power in India

The power of clemency or the pardoning power is envisaged under Article 72 for the head of the state and the mutatis mutandis provision for the Governor is provided under Article 161. 

This power does not work on the strict principle of law or interpretation of the law; it deals with those aspects which are often alien and irrelevant to legal adjudication like morality, ethics, public good and policy considerations. These are the cornerstones in the exercise of clemency powers.[39]

The executive power of clemency usually comes into picture when the sentencing and conviction process is completed. In pursuance of these clemency powers, the President and Governor are authorised to scrutinise the record of the case and if they find out that the as per their analysis then they may differ with the judicial verdict or if they agree with the court then also they may correct the error beyond judicial ken.[40] The most important part here is the president and the governor will decide the case on the aid and advice of the council of ministers respectively.[41]

In the case of Re Maddela Yera Channugadu & others v. State,[42] the Madras High court said that the pardon power extends to the whole of India. The power to grant pardon may be exercised either before conviction by amnesty to the accused or under-trial prisoner or after conviction. The reasoning of the court, in this case, was the similarity in the wordings of the United States Constitution and the Constitution of India. But it can be argued that the Courts, in reaching the above conclusions have neglected the core principles of interpretation of a constitutional text.[43]

Impact of Judiciary on Clemency Power

The basic development served by the judiciary in the context of Article 72 and 161 is allowing judicial review. 

In the case of Manu Ram v. Union of India,[44] the court stated that the power of pardon shall never be exercised arbitrarily, or malafide. 

In the case of Kehar Singh v. Union of India,[45] the court stated that the area of presidential power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.

The Supreme Court also laid down certain grounds which can be claimed by the petitioner for judicial review of the Clemency Power:

1. The order passed without application of mind;
2. The order is mala fide;
3. The order is passed on wholly irrelevant consideration;
4. The order suffers from arbitrariness.[46]

The recent landmark judgment of the Supreme Court Shatrughan Chauhan v. Union of India,[47] where the petition was filed by the convict whose mercy got rejected and no reason for undue delay explained it leads to violation of Article 21. 

The Supreme Court stated that the cases in which there is an unexplainable delay of 6 to 12 years, in those cases the death sentence must be commuted to life imprisonment.

The Supreme Court laid down many factors like mental trauma, lack of legal aid, and age of convict etc. which can be used as a ground for challenging the order of clemency, also the court observed that these power are repose with highest dignitaries i.e. the President or the Governor of a State, as the case may be, and there are no words of limitation indicated in either of the two Articles and they may grant remission is an act of grace and humanity in appropriate cases i.e. distinct, absolute and unfettered in its nature.    

So, India, now the court had laid down the basic grounds on which the judicial review can be filed against the order of clemency, and these grounds had diluted the clemency power of the president and now it is more guided by rule of law rather than discretion of authorities.    

Limelight Cases apropos to Clemency Power

The clemency power is generally said to be unswayed by other wings of government; however, in amid of Nibhaya Case proceedings, the petition of Mr. Vinay Sharma – a death-row convict had raised the question on the way clemency power is used India.[48] This petition was challenging the rejection of Mercy petition.

One of the arguendo the petitioner referred to the court was, the cases which involve ‘public sentiments’ is influencing the ‘aid and advice of ministers’ as done in the present case which led to the rejection of petition on vitiated biasness.

Now, this arguendo was made on the ground that since many other Mercy petitions made prior to Nirbhaya cases are still pending then why ministries are concerned with the present petition so much.

This argument had raised many doubts in the mind of people since it’s a true factum. As per the President’s Secretariat website, the cases which were in limelight had been decided briskly.[49] For an instance, in the case of Md. Ajmal Kasab in 2012, he placed the application and in 2012 only, it got rejected.[50] 

So, the way in contemporary time, the way President Clemency Power is used in India, it can be said that the ‘aid and advice of Council of ministers’ is affecting the sacrosanct clemency power if the things go in the same way, it may become a vote bank politics.       

Conclusion

On analyzing the clemency power of three different jurisdictions it can be articulated, that there are certain issues with the clemency power in India which has to be resolved for the sake of Justice. 

Recommendations as per the recent issues:

1. The clemency power in India must be made independent and the aid and advice of ministers must be detached from this process, so that independence can be maintained while deciding the petition. This will require amendments in the Constitution under concerned Articles.
2. There must be a proper procedure that has to be followed in picking up cases, granting pardon/ rejecting pardon. If a proper and transparent procedure is followed in acceptance and rejection of the petition, then no doubts on the application of this power will arise. 
3. ‘Justice Delayed is Justice denied’, this phrase, unfortunately, suits to the clemency power in India, since there are many instances where President secretariat had taken more than 10 years in replying the petition.[51] In case of Dharam Pal the mercy petition was made before the president in 1999 and got rejected in 2013. It took more than 13 years for finality. If the petitions would take such a long time to be settling the matter, then clemency power will be more of denial to justice rather than path to Justice. So this process needs to be organized and a timeline must be set up for disposal of Mercy petitions.

So, the clemency power exists in all three countries, irrespective of the form of government they have adopted and considered it as a paramount, however in India, the cases which involve public sentiments, are hampering this sacrosanct power of clemency so, State must create a system governed by rule of law and not by public sentiments, through which the clemency petitions must be decided and the fair and equitable justice may prevail in the society.  

References

[1] Shatrughan Chauhan & Anr. v. Union of India. & Ors.,(2014) 3 SCC 1.

[2] The Constitution of India, art. 72. 

[3] Shubhankar Dam, “Executive”, in Sujit Choudhry , Madhav Khosla Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution 494 (OUP, 2016). 

[4] Ibid.

[5] J.P. RAI, “Exercise of Pardoning Power in India: Emerging Challenges”, XII The NEHU Journal 1 (2014). 

[6] Merriam Webster, available at: https://www.merriam-webster.com/dictionary/clemency (last visited July 14, 2020).

[7] Black’s Law Dictionary, available at: http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf (last visited July14, 2020).

[8] Mahendra Pal Singh, V.N. Shukla’s Constitution of India, 416 (EBC, Lucknow, 2019).

[9] Ibid.

[10] Ibid at 417.

[11] Ibid at 417.

[12] Leslie Sebba, “The Pardoning Power-A World Survey” 68 Journal of Criminal Law and Criminology 83 (1977). 

[13] Robert Nida, Rebecca L. Spiro “The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power” 52 Oklahoma Law Review 197 (1999).

[14] Ibid.

[15] Shodhganga, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/201569/8/08_chapter%202.pdf (last visited July14, 2020). 

[16] Ibid.

[17] J.P. RAI, “Exercise of Pardoning Power in India: Emerging Challenges”, XII The NEHU Journal 1 (2014).

[18] Parul Kumar, The Executive Power to Pardon: Dilemmas of the Constitutional Discourse, 2 NUJS Law Review 9 (2009). 

[19] Ibid.

[20] Ex Parte Grossman, 267 U.S. 87 (1925).  

[21] Kehar Singh v. Union of India, (1989) 1 SCC 204.  

[22] Dr. Sandhya Verma, Ankit Prasad, “Article 72: pardoning power not unbridled”, 4 International Journal of Law 227 (2018).

[23] De Freitas v. Benny, [1976] A.C. 239.

[24] Supra note 18.

[25] Shodhganga, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/148889/12/12_chapter%205.pdf (last visited July14, 2020).  

[26] Stanley Grupp, “Some Historical Aspects of the Pardon in England.” The American Journal of Legal History 7, no. 1 51 (1963).

[27] Supra note 9.

[28] Ibid.

[29] Shodhganga, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/148889/12/12_chapter%205.pdf (last visited July14, 2020).  

[30] Ibid.

[31] Council of Civil Service Unions v. Minister for the Civil Service, (1985) AC 374.  

[32] Shodhganga, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/148889/12/12_chapter%205.pdf (last visited July 14, 2020).  

[33] Constitution Annotated available at: https://constitution.congress.gov/browse/essay/artII-S2-C1-3-1-1/ALDE_00001132/ (last visited July 18, 2020).

[34] Ibid.

[35] Shodhganga, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/148889/12/12_chapter%205.pdf (last visited July 18, 2020).  

[36] United States v. Wilson 32 U.S. 150(1833).

[37] Biddle v. Perovich 274 U.S. 480(1927).

[38] Ex parte Garland 1071 U.S. (4 Wall.) 333 (1867). 

[39] Law Commission of India, “262nd Report on Death Penalty” (August, 2015).

[40] Law Commission of India, “262nd Report on Death Penalty” (August, 2015).

[41] Maru Ram v. Union of India, (1981) 1 SCC 107.

[42] Re Maddela Yera Channugadu & others v. State, AIR 1954 Mad 511.  

[43] Rohan Sahai, Limits of the Pardoning Power Under The Indian Constitution, 2 NUJS Law Review 283 (2009). 

[44] Manu Ram v. Union of India, (1981) 1 SCC 107. 

[45] Kehar Singh v. Union of India, (1989) 1 SCC 204. 

[46] Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161.

[47] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

[48] Vinay Sharma v. Union Of India, WRIT PETITION (CRL.) NO.65 OF 2020.

[49] President Secretariat, available at: https://rashtrapatisachivalaya.gov.in/statement-mercy-petition-cases-during-tenure-former-president-india-shri-pranab-mukherjee-rejected

[50] Ibid.

[51] Asian Centre for Human Rights, available at: “The Status of Mercy Petitions in India” http://www.uncat.org/wp-content/uploads/2019/05/The-Status-of-Mercy-Petitions-in-India.pdf  (2015). 

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