This article has been written by Varshini Sudhinder.

Introduction

A pardon is considered an act of grace, mercy, and forgiveness. It is an age-old concept that allows the sovereign executive to offer clemency to a person who has been convicted. Previously, it used to be attributable to a symbolic power possessed by a god-like king who can exercise control over his subject’s life and death.^[1] According to Seervai, the power to grant mercy is essential because it can “prevent injustice whether from harsh, unjust laws or from judgments which result in injustice; hence the necessity of vesting that power in an authority other than the judiciary has always been recognized.”^[2]

Article 21 

Article 21 of the Indian Constitution protects the life and personal liberty of every citizen and is arguably one of the most important provisions of the Constitution. There is a myriad of safeguards against the deprivation of life and personal liberty, and recourse to judicial forums is one of the protections granted when this right has impinged. But it cannot be contested that even the most trained mind is prone to fallibility. Erroneous decisions, those decided despite lack of evidence, wrong convictions, or any case where the judiciary was bound to reach a decision – which on humanitarian conceptions must not have been reached – are covered by Article 72 of the Constitution.  

Article 72

Article 72 confers upon the President 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…”^[3] This mercy jurisdiction is also extended to the Governor under Article 161. For our current purposes, we are dealing with Article 72 alone.

Even during the British rule in India, Section 295 of the Government of India Act, 1935 conferred on the Crown, or by delegation to the Governor-General, this power to grant mercy, but this was unfettered, absolute, and not subject to any judicial scrutiny. The post-independence Indian experience has been different.

Case laws

In the case of Maru Ram,^[4] It was held that the power given to the President must be exercised on the aid and advice of the Prime Minister and Council of Ministers. Up until recently, mercy was considered a “discretionary remedy” and not a “constitutional obligation”. This idea was propounded by the court in Ranga-Billa,^[5] wherein the two accused were convicted for committing the murder of two minors and were sentenced to death. In a 620-word judgement, the court ruled that they saw no justification in saying that the President has transgressed his discretionary power by refusing to commute the sentences. This has invoked criticism by scholars because even an arbitrary exercise of the pardoning power was considered an entirely discretionary remedy.

Kehar Singh case

Facts

The Court in Kehar Singh,^[6] which is also the main concern of this article, went one step further in this regard. Kehar Singh was convicted of an offence under sections 120B and 302 of the Indian Penal Code, in connection with the assassination of Indira Gandhi, who was the Prime Minister at the time. He was convicted at the trial stage by the Additional Sessions Judge, and all his appeals to higher authorities failed, by way of dismissals. On application to the President for the grant of pardon under Article 72, they pleaded that the guilty verdict was erroneous, and it was a prayer for a plea of clemency. It was further urged that they be granted an opportunity of the oral hearing.

The President refused to grant pardon, with the reasoning that they cannot go into the merits of the case that has been finally decided by the Highest Court. The petitioner was also not granted an oral hearing. The main issue raised is whether the President is precluded from entering into the merits of a case finally decided by the Supreme Court.

Judgement and analysis

The Court, first, goes into the prerogative nature of pardon, as it is considered in England. Then, it states that whenever there is a denial of or a threat to the life and personal liberty enshrined under Article 21, protection must be ensured by entrusting this power to protect further to a higher authority who can scrutinise the validity of such a threat or denial. This is stated to show the importance of safeguarding against judicial error. Furthermore, placing reliance on the opinion of Mr. Justice Holmes,^[7] the Court says that the act of pardon is not a private act of grace, but a part of the constitutional scheme. This is also applicable to India, but as stated in Maru Ram, the power would be exercised on the advice of the central government.

After having established the importance of the power vested in the President, the Court opined that the President, in the exercise of his powers under Article 72, must scrutinise the evidence on record and even if he comes to a different conclusion, the President does not amend, modify, or supersedes the judicial record. The plane in which he acts is vastly different from the courts.

On the question of whether judicial review extends to the order passed by the President, the court was of the opinion that the order cannot be subjected to judicial review on its merits, except within the strict limitations of Maru Ram, which spoke to the importance of not exercising this power in a mala fide fashion.

Talking about the question of oral hearing being granted to the mercy petitioners, the Court said that the matter lies entirely in the discretion of the President. When filing the petition, all the relevant documents must be submitted, and if the President sees fit, he can call for an oral hearing.

While the Court is right in pointing out that the decision to be taken by the President is separate from the decision by the judiciary, and that the mercy granted or any commutation or reprieve given to the petitioner would not change the judicial record, it was not able to satisfactorily address the other concerns.

Upendra Baxi was highly critical of the Court’s stance in this case. In this context, he brought up the Antulay case^[8] which in his words, was a rediscovery of Article 21. He highlights the principle in the decision and says that any action which manifestly violates Article 21, no matter how high an authority did this act, must be rectified. The Supreme Court itself is bound by the due process guaranteed by the article and has to annul its own decision if it meant an error in this regard.

In Kehar Singh, the Supreme Court not only dismissed a review but also a writ petition against the conviction and sentencing. Seeing this in the light of the Antulay decision, which was annulled on the ground of a due process violation of Article 21, in a case which does not even result in a death penalty, then one can only imagine the enormity of the error in dismissing the petitions to the Court, when it concerned life and death of a human being.

Baxi, in a tongue-in-cheek manner, criticises the judges who went on to assiduously quote overseas judgements but did not mention the Antulay decision. He goes on to say that, according to him, no summit court in the contemporary world has extended due process rights to review judicial orders in the self-same proceeding and annul them. Of course, if these standards can apply to judicial orders, they can also apply to executive acts. A decision as critical as Antulay was, therefore, necessary to at least engage with when it comes to questions of deprivation of the most fundamental right of life and personal liberty.

In the Court’s opinion on oral hearing being completely at the discretion of the President, Baxi and many others point out that principles of natural justice which are enshrined in the Constitution grant every citizen a minimal right to a fair hearing. The Courts themselves, as pointed out by Baxi, have insisted on this right be it in a judicial setting, a quasi-judicial one, or an executive one. So, in a situation of capital punishment being given to a convict, failing which she will lose her life, it is almost cruel to refuse even a basic right to an oral hearing.

Kehar Singh mentions two reasons for which mercy power can be exercised. First being, a “safeguard against judicial error”. Here, post-Antulay, the judiciary can institute a larger bench in the same proceeding to resolve the judicial error. Second, it states “reasons of state” as a ground. Baxi points out that this could lead to a flagrant violation of human rights in the future because this ends up extending the discretionary power in a blanket fashion to all provisions in the constitution which recognises the reasons for state doctrine.^[9]

Moreover, the Court seems confused when it comes to the question of judicial review, because on the one hand, like pointed out earlier, the Court said that the strict limitations of Maru Ram will apply, but on the other hand says that the “…question as to the area of the President’s power under Article 72 falls squarely within the judicial domain…”. But does not exercise its power of judicial review at all, because neither does it grant oral hearing nor did it lay down any guidelines for the President to follow. In fact, the Court sent it back to the President to decide, who did exactly the same thing, but this time with “different” reasoning.

If we look at what happened jurisprudentially after the Kehar Singh judgement, we notice that some cases like Epuru Sudhakar,^[10] did manage to lay down some guidelines when the grant of clemency can be challenged such as, without the application of mind, mala fide, extraneous or wholly relevant considerations, relevant materials not being considered, or if it suffers from arbitrariness.

The Shatrughan Chauhan case,^[11] dealt with a very different, yet important issue of an inordinate delay in dealing with mercy petitions. The Court said that this was equivalent to the executive adding a sentence to the verdict given by the Court. More importantly, it categorically said that the power granted under Articles 72 and 161 is one of a “constitutional obligation”, and not a mere prerogative. It also laid down some additional guidelines, and while this does come as a relief, it still leaves several questions unanswered.

The issue of pardon is inextricably linked to the death penalty, and it becomes important to have guidelines in place to avoid arbitrary use of this power. When questions of life and death come to the fore, every organ of the State must ensure that there is no misuse of the provisions. Such decisions are irreversible. There have been multiple instances where the State has taken the life of a convict, only to realise many years later that what it had done was wrong. Or even worse, never realise that they had taken the life of an innocent.

There are statistics in place which show that 5,106 mercy petitions were filed by convicts on death row between 1947 and 2015, out of which 69% were rejected.^[12] And there are statistics to show that 76% of the prisoners^[13] among those convicted in a given time frame belong to a socially and economically weaker background. One can clearly infer that access to resources, general awareness, legal access, recognition of their own rights, etc. is part of a knowledge that is not accessible by all. This makes the system inherently skewed in favour of people who have far-reaching access, or political or economic clout.

This puts us in an uneasy position and makes us question the entire system of mercy. While we can say that an act of mercy comes from a good place, one of benevolence, acceptance, and recognition in rehabilitation. But the practical use of this power, especially when there is populist support driven by majoritarian tendencies to refuse pardon, like in the case of Afzal Guru, or if the only persons who are able to avail of this remedy (which while is supposed to be a “constitutional obligation” upon the executive, but is instead used as a discretionary remedy to give into acts like nepotism or political favours) are those with clout, it makes us question whether this should exist at all.

References

[1] Rai, J., 2014. Exercise of Pardoning Power in India: Emerging Challenges. The NEHU Journal, Vol XII, No. 2, July – December 2014(ISSN. 0972 – 8406), pp. 1- 26.