This article is written by Sajjan Singh Chouhan, here he discusses the Presidential Power to Pardon in India.

Pardoning power is becoming an integral part of every country’s executive function. But this power is often becoming subject of debate and is criticized across the globe due to its abusive use in the past. Despite its popularity and usefulness, it is often criticized, the reason being the wide range of offenses categorized as pardonable and its effect on society. The critics make their assertions solid by citing the past instances of abusive use of pardons by presidents. Often the pardoning power is criticized on the basis of the doctrine of separation of power. Indeed their concerns are very true but they need to understand the importance and very necessity and the reasons for such arrangements in the Indian Constitution. Their concept regarding the president power are nearsighted and are mainly focusing on its effects rather than the benefits that can be derived out of it. This article centers on the development of pardoning power in the Indian Constitution and the debates over it in the constituent assembly. This article highlights the jurisprudence behind such powers. The researcher also tries to interpret the wordings of Article 72 of the Constitution of India. Further, this article throws light on the judicial review of pardoning power and its need in the present scenario. Finally, the article is concluded along with some suggestions which can be adopted to overcome the problem of abusive use of pardoning power.

Introduction

A criminal justice system is looked upon as providing justice in the society as well as to the victim and to the offender. But as every system is not perfect, so is the criminal justice system and sometimes the offender may not get what they morally or legally deserves. The rule of evidence may not always lead to the real truth of innocence or guilt. Sometimes the prosecution may abuse its authoritative power against an innocent accused. In these scenarios, ‘pardon’ proves to be a boon for these convicted persons. As Moore writes,

“a pardon is justified when the procedures miscarry, giving the state a legal, but not a moral, license to punish”.[2]

Pardon is the act of granting mercy. Pardon is defined as “ a decision taken by the government to absolve the crimes of a convict and free him/her from the prison sentence. All past records are treated as if they never occurred”.[3]

Usually, the head of the state is authorized with the power to grant pardon to a convicted person. In India, the power to pardon rests in the hands of President of India. Article 72 and 161 of Constitution of India empowers President and Governor respectively to grant pardons.[4][5] The scope of Article 72 is wider than Article 161. The Governor of a state is only empowered to grant pardon for violation of state laws and the limits to which the states executive power extends, also the pardon petition declined by him can be accepted by President. The petition pertaining to the death penalty can be handled only by the President.

Pardons granted may be of different kinds, it may be Absolute in which the offender is freed from all legal liabilities and all of his legal and civil rights are restored, which were suspended while he was convicted. It may be Conditional in which certain conditions need to be fulfilled before granting the pardon. In Partial pardons, certain punishment is reduced or even nullified by the President.

However, the power to pardon has become the subject of controversy nowadays. The power to pardon is often regarded as an intrusion into the functions of Judiciary. Pardoning power is criticized as a violation of the doctrine of separation of power. This power is criticized citing the huge abuse of power and granting of pardons in several instances only to big politicians, businessman, and powerful people. Moreover, the significance of pardoning power is reduced as the contemporary laws are already made in supportive of offenders. Further, in cases of the death penalty, Courts order it only in ‘ rarest of rare’ cases and with full diligence, so the probability of miscarriage of justice is very less(which is the basis of supportive reason for granting pardons).

Jurisprudence of Granting Pardons

The presidential pardon is the much-debated subject in the list of executive powers, but it is still holding tight and responding to every criticism, it is due to the fact that it is based on a sound philosophy. The philosophy on which the pardoning power is based is that every country with a criminal justice system must provide for the pardoning power, which may be exercised in various proper cases, a country without such power is considered to be imperfect and lack of political morality. The legitimate object of all punishment in the criminal justice system is of public good and is delivered on grounds of public welfare, so is the object of pardons i.e. public good. Granting of pardon frees a convicted person from all legal liabilities, which provides an opportunity for an individual to start a fresh life and is restored to his original position of innocence in the society. It may serve as a better method of reformation for convicted persons.

If it is considered that laws applied are just in every circumstance, then there would be no need for pardoning power[6] but this is an ideal situation and can’t be achieved in every circumstance. Sometimes due to false evidence and carelessness of prosecution an innocent becomes the prey of wrongful convictions and is punished accordingly, it leads to the miscarriage of justice and it can only be rectified by granting pardons. Even the administration of justice by Court is not necessarily always wise, so pardon is check entrusted with the executive for special cases.[7]  Sometimes hope plays as an important weapon to fight injustice. Sometimes the hope of a convicted person of getting pardons abides himself to behave properly in order to get the pardon. This further leads to changed and reformative behavior of the convicted person. Further, it is better to grant a pardon to a guilty person rather than sentencing an innocent person for whole life. As every system is full of errors, so is our justice system thus granting pardon helps in rectifying those earlier errors made while convicting a person. Once a person is sentenced with punishment by the court and all the judicial means to reduce or reconsider the sentence has been exhausted then, the pardon is the only means to secure justice by reducing or reconsidering the sentence. It is the means to mitigate the harsh justice done to a convicted person.

A different school of thoughts has different views in regard to presidential pardons. The retributive thought of school believes that pardon is the only extra’ judicial remedy which can be used to rectify the errors of the criminal justice system. The school of thought based on rehabilitation and redemption have different justification and reasoning, they believe that it is not necessary that pardon’ should serve any judicial remedy, even though it should be regarded as an integral part of any justice delivery system in a country. On the other hand, redemptive philosophy believes that a person undergoes many changes in his behavior after conviction, and this changes could be considered by granting pardons and thus such cases may serve the purpose of delivering justice.

Presidential Power in India and Constitutional Assembly Debates

After independence in 1947, the framing of the constitution for India was started. Discussions on every subject matter was made and during the discussion, the provision for ‘mercy’ also formed part of it. It was Dr. Shyama Prasad Mukherjee who first referred to the president’s power to grant mercy and commute or remit punishment.[8] Another member was K.T Shah who sent a note which included ‘pardon convicted criminals’, and the power of it lies in the hands of the head of the state. For the first time the power of mercy, remission, and commutation were included in the recommendations of the committee on the Principle of Union Constitution and this was contained in clause 7(2)B of it.[9] This became part of a discussion in the constituent assembly on 31 July 1947. Meanwhile, Mr. B.L Mitter and some other representatives of princely states demanded such powers at the state level.[10] N Gopalswami Ayyangar discussed the need for such powers and moved an amendment to clause 7(2)B and said:

“I think, sir, the House will agree that, when we are setting up a Head of the federation and calling him the President, one of the powers that should almost automatically be vested in him is the power to pardon”.[11]

There were debates over the pardon power in case of death sentences and finally it was rested only with the president. The Articles containing powers of the pardon of president and governor were numbered as 59 and 141 respectively in the Draft Constitution and were sent for discussion. The war at Kashmir and the assassination of Mahatma Gandhi in 1948 affected the discussion and Article 59 and 141 were added to the Draft Constitution without further discussion. Finally, these Articles were renumbered as Article 72 and Article 161 in the revised Draft Constitution in November 1949 and remained same till the Constitution was finally adopted.

 Article 72

Before looking at the powers of pardon it is important to understand the wording of Article 72. Article 72 revolves around 3 words, ‘offence’, ‘punishment’ and ‘sentence’. The word punishment and sentence used are in relation to the offense committed and the person charged with. So the punishment or sentence which is to be pardoned should be of the offense committed and not of simple breach of a condition.[12]

The word offense is to be understood as defined in the General Clause Act,1897.[13] While defining sentence and punishment it is a common principle that a person can be punished or sentenced for an offense only when he has been convicted by the court for that offense. It is a common notion that a person is considered to be innocent until proven otherwise.[14] Thus a person can be granted pardon only if he has been convicted, otherwise there can be no punishment or sentence, hence no pardon. However, it was held in K.M Nanavati v. State of Bombay[15]that the power of pardon may be exercised at any point of trial, after a trial and even before a trial starts.

The other question arises is whether the sentence passed by tribunals comes under the purview of Article 72. The answer lies in the wording of the tribunal during the trial. Any violations of laws made by the tribunal are always considered as a breach of the condition rather than an offense. Hence there can be no pardon for a simple breach of conditions. This Article empowers to grant pardon only in cases which are described as an offense as per Indian Penal code and the person convicted is tried as per the code of criminal procedure. Any alleged act which does not fulfill the ingredients of offense as defined in the General Clause Act 1897, then the word punishment would not hold the same meaning as the word hold in Article 72.[16]

Judicial review of Presidential Pardon 

There has been constant debate as to whether the pardoning power is absolute in nature or is subjected to judicial review. Supreme Court has laid down various interpretations to it through various judgments. Supreme Court has several times declared the pardoning power as arbitrary in nature and laid down several guidelines for it.

In Maru Ram v Union of India[17], it was held by Supreme Court that Article 72 is to be exercised on the advice of central and state governments. The same stand was taken by Supreme Court in Dhanjoy Chatterjee v State of West Bengal.[18] Whether mercy is right or discretion was answered by the Supreme Court in Ranga Villas case. In this case, the petitioner challenged the rejection of the mercy petition by the President without citing a reason. SC dismissed the petition and held that the word “mercy” in itself signifies its discretionary nature. In Swaran Singh v state of U.P[19], Supreme Court interfered with the Governor granted mercy to a person convicted under charges of murder. The SC held that the order passed under Article 161 is absolute but “ if such power has been exercised arbitrarily, mala-fide or in absolute disregard of the “finer cannons of constitutionalism”, then the order cannot be granted and should be scrutinized by the court.[20]

In the landmark judgment Epuru Sudakar & Anr. V Govt. Of A.P & Ors., it was held that “it is a well-settled principle that a limited judicial review of the exercise of pardoning power is available to Supreme Court and pardoning grant can be challenged if it is done with mala-fide order, order on irrelevant considerations, or order suffering from arbitrariness.[21]

Conclusion

The researcher would analyze the issues discussed and would conclude it here.

Pardoning power is entrusted with the executive to keep checks on Judiciary and the power is without any limits. Looking at its discretionary nature to grant pardon by president there are high chances of abusive use of this power. Pardoning power is to rectify the errors made by Judiciary during the conviction of a person, so it proves to be playing a pivotal role in doing real justice and keeping checks on Judicial errors.

The process of granting of a pardon is very easy but due to the interference of politics, many petitions are delayed over a long time. These delays can be rectified by bringing an amendment to the laws of pardoning provision and setting up the time frame for disposal of any petition. Indeed this power is of great use if exercised with due diligence and wisely without any abusive use of it.

Looking at the discussion of Judicial review of pardoning power, researcher opined that the power to pardon should not be absolute and should be subjected to limited judicial review, but judiciary should not interfere much in the procedure of granting the pardon.

In India, pardoning power is having enough checks and balance, but it is time to be awake and pace up with time and bring some changes into the methods of the exercise of this power. The time till Judicial system attains perfection or achieve such level that it does not makes any mistakes, the pardoning power would serve to be an integral part of the justice system to prevent the miscarriage of justice.

[1] Author is a II year student at the Institute of Law, Nirma University Ahmedabad.

[2]Chad Flanders, ‘Pardons and the theory of the “second-best” vol. 65, Florida Law Review,(2013) p. 1566.

[3]Blacks Law Dictionary.

[4]Article 72, Constitution of India defines the power of President to grant the pardon.

[5]Article 161, Constitution of India defines the power of Governor to grant the pardon.

[6]The DIG of police, North Range, Waltair and Anr v D. Rajaram and Ors., MANU/AP/0612/1960

[7]S.C Jain, The constitution of India-select issues and perceptions,57, (Taxmann: New Delhi,2000)

[8]Nature, origin and development of pardons-an assessment, Shodganga, p 60.

[9]Ibid.

[10]Constituent Assembly Debates, vol. IV, p 956

[11]Constituent Assembly Debates, vol. IV, p 957.

[12]Ekta Bharati, ‘Presidents power to pardon’, vol. II, issue 2, JCIL p.7.

[13]Definition 38, The General Clause Act,1897 p.6.

[14]Article 372, Constitution of India.

[15]1961 SCR (1) 497.

[16]Maqbool Hussain v. State of Bombay, AIR 1953 SC 325.

[17]AIR 1980 SC 2147.

[18]1994 SCC (2) 220

[19](1998) 4 SCC 75.

[20]Pranjal Shekar, ‘Power of president to grant pardon: Indian Scenario’, lawctopus Academike, 2014

[21]‘Pardoning power of president and governor’ at Advocatekhoj.com