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Pardoning Powers In India

Mercy pleas, pardons, and all communications for acts of mercy to and from the state executive, the President of India, and governors of states in India's case. It is the most common route opted by prisoners on death row or convicted for an offense with a death penalty to convert the said death penalty into life imprisonment. The reasons for having such a provision are beyond the scope of the rule of law and are perceived as based on humanitarian grounds, but there is always a logical side to such concepts.

A convict under the sentence of death is allowed to file a mercy petition within seven days after the date from 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 to be presented to the President of India.

In a humane approach to law, a mercy plea is enshrined as a matter of recourse available to convicts. It is not to be confused with the rights of convicts and obligation on the executive as is made clear by the Constitution that it is not a right but rather a matter of grace.

The Supreme Court repeated its position in the Kehar Singh v. Union of India, 1981 case and declared that the President's pardon is an act of grace and cannot be asserted as a matter of right.The executives in India, i.e., the President and the Governors exercise their powers under Article 72 and Article 162 of the Indian Constitution respectively to pardon sentences.

Power Of Clemency In Various Countries

Power of clemency or pardoning power is used by different countries in different ways. Most of the time it is in the hands of the Head of the country, be it President or Prime minister.

The American constitution grants the President the authority to remit fines, penalties, and forfeitures, with the exception of money covered into the treasury or paid to an informant. This authority also includes the ability to grant reprieves or pardons under Article II of Section 2 against the United States, unless impeachment is involved.

According to how the pardoning authority is now understood in the United States, neither Congress nor the courts are allowed to disregard the president's right to pardon. The US Constitution specifically states in Article 2 that the right to pardon is one of the enumerated powers and cannot be exercised in the event of impeachment.

On the assistance and recommendation of the council of ministers, the Constitutional monarch of the UK has the authority to pardon a conviction. A pardon can be both unconditional and constrained. It is conditional if the grantee must carry out a specific action or refrain from doing so before it becomes effective.

The National Parole Board, a division of the Criminal Records Board, considers pardons in Canada. The federal cabinet has the authority to pardon those who have been found guilty of a crime. Free or conditioned pardons are both possible.

For a very long time, the use of a pardon to lessen an accused person's punishment has been divisive. Those who dismiss pardon as a useful tool for mitigating circumstances contend that the executive branch frequently abuses the pardoning power. The possibility exists that the prisoner could secure his release from custody by improperly influencing the executive branch. Most nations provide a provision for judicial review of the pardon given in the event that the grounds for the pardon are deemed to be insufficient in order to avoid these defects.

Pardoning Power Of President In India

The power of Presidential Pardon is found in Article 72 of the Indian Constitution. It states: Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases:
  1. The President shall have 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:
    1. In all cases where the punishment or sentence is by a court Martial;
    2. In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    3. In all cases where the sentence is a sentence of death
  2. Noting in sub clause (a) of Clause (1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

Pardoning Power Of Governor

Article 161 mentions the Pardoning Power of the Governor. It states:
The Governor of a State shall have 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 against any law relating to a matter to which the executive power of the State extends.

When a convict has committed an offence against state law, the concerned punishment can be granted the pardon, reprieve, respite and remission by the Governor of the state.

Governor's power to pardon overrides a provision in the Code of Criminal Procedure - Section 433A -which mandates that a prisoner's sentence can be remitted only after 14 years of jail, a Bench of Justices Hemant Gupta and A.S. Bopanna observed in a judgment.

Types Of Pardoning Power

There are five terms or types of pardoning powers mentioned in Article 727 and Article 1618 of Indian Constitution.

All these powers are described here for a basic understanding.
  1. Pardon:

    When the President pardons, both the sentence and the conviction of the convict completely absolve the sentences, punishments and disqualifications.
  2. Respite:

    When the President uses the pardoning power of 'Respite', he chooses to award a lesser sentence in place of one originally awarded to the convict. For example, due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender, the President can use this power.
  3. Reprieve:

    When the President chooses the pardoning power of 'Reprieve'; he stays the execution of a sentence (especially that of death) for a temporary period. By doing this, he enables the convict to have time to seek pardon or commutation from him.
  4. Remit:

    When the President chooses the pardoning power of Remit, he acts to reduce the period of the sentence, but the character of the sentence remains the same. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year but the imprisonment remains rigorous.
  5. Commute:

    When the President chooses to use this pardoning power of 'Commute; he substitutes one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.

Other Laws Of Pardon

Besides Articles 72 and 161 of the Constitution of India, provisions in the CrPC, 1973, prison laws, guidelines issued by the National Human Rights Commission, instructions issued from time to time by the Central and State Governments and local laws enacted by State Legislatures also apply to the matter of pardon etc.

Various laws applicable to the matter of clemency etc. of the prisoners are given below:
  1. Article 161 of the Constitution of India.
  2. Article 72(3) of the Constitution of India (in relation to Governor)
  3. Sections 432, 433, 433A, etc. of the CrPC, 1973.
  4. Judicial pronouncements.
  5. Advisories issued by the Ministry of Homes, Government of India
  6. Guidelines issued by the National Human Rights Commission.
  7. Second Schedule under rule 8 of UP Rules of Business, 1975 (in relation to the State of Uttar Pradesh).
  8. G.Os. issued by the Central and State Governments from time to time. 9. U.P. Prisoners' Release on Probation Act, 1938 (in relation to the State of Uttar Pradesh).
  9. U.P. Prisoners' Release on Probation Rules, 1939 (in relation to the State of Uttar Pradesh).
  10. The U.P. (Suspension of Sentence of Prisoners) Rules,2007 (in relation to the state of Uttar Pradesh)

Some Important Case Laws
During the last several decades, the law on remission, respite, commutation, pardon, amnesty, parole and premature release from jail of prisoners has been settled by the different Constitution Benches of the Supreme Court of India by their landmark judgments delivered in the cases noted below:
  1. Union of India v. V. Sriharan alias Murugan & Others, (2016). 7 SCC 1 (Five-judge Bench)
  2. Mohd Arifv. Registrar, Supreme Court of India, (2014) 9 SCC 737 (Five-judge Bench).
  3. K. Prabhakaran v. P. Jayarajan, AIR 2005 SC 688 (Five-judge Bench).
  4. Kehar Singh v. Union of India, AIR 1989 SC 653 (Five-judge Bench).
  5. Maru Ram v. Union of India, AIR 1980 SC 2147 (Five-judge Bench).
  6. Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 (Five-judge Bench) (Mahatma Gandhi murder case).
  7. KM Nanavati v. State of Bombay, AIR 1961 SC 112 (Five-judge Bench).
  8. Sarat Chandra Rabha & Others v. Khangendra Nath and Others, AIR 1961 SC 334 (Five-judge Bench).
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