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Power to Pardon, Unbridled?

I have always found that mercy bears richer fruits than strict justice.- Abraham Lincoln, 16th U.S President
[i]Since the period of Renaissance right to life and liberty has been held as the most basic and foundation of any individual. It is also the source of other rights because without it no other right can exist. Therefore our very constitution recognizes it as the fundamental right of every person. However in certain cases, it can be curtailed yet the power to pardon which is also referred as mercy petition, is usually reserved for the highest body in the State.

In our country where the President is the highest body representing the citizens this power falls in his domain. Before independence under section 295 of Government of India Act, 1935 Governor-General had the prerogative to commute, refute or suspend such sentences. But after independence president has been empowered by article 72(1) and governors by article 161 however the ambit of power in case of governor is narrower than that of presidents. This power is exclusive and has to be used with great caution. Three words have to be focused upon: 1) Offence 2) Punishment 3) Sentence. These three are the prerequisites and only when the justice is not met by execution of such sentence this power has to be exercised.

This is evident from the paramount position given to article 21 of the Constitution. To uphold this article we can say that our Constitution grants the powers of pardon . but what is mercy petition or pardon? , [ii] In criminal law. The discretion of a judge, within the limits prescribed by positive law, to remit altogether the punishment to which a convicted person is liable, or to mitigate the severity of his sentence; as when a jury recommends the prisoner to the mercy of the court. [iii]This rationale is further enunciated by Justice Holmes of US Supreme Court where he points out that pardon as of today is not an act of grace but is a constitutional scheme which when granted is determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgment fixed.

Though this power is not absolute and is subjected to judicial review as it has been held down in various Supreme court judgments. The reason for this is to maintain a check and balance system on the authorities and to see that the decision are taken unbiased.

[iv]Significance Of Pardon:

The significance and need for clemency has been a source of debate for decades. Montesquieu believed in the significance of clemency in the monarchical system. Beccaria advocated the total abolition of this institution and keeping this in view this provision was dropped for few years in France during the revolution of 1789 while the English scholars Feilding, Eden and Colquhoun concentrated their attacks on the abuses evident in the exercising of the pardoning power. Immanuel Kant and Filangeiri were against the very existence of such a provision. The power of pardon could be thought of as an archaic survivor of a bygone era where there existed an omnipotent ruler who was vested with powers to bestow his benevolence once in a while totally based on his whims and fancies.

[v]Even today the reflections of the past can be seen in the provisions of our constitution. The constitution vests in the president and the governors of various states with the power to grant reprieves and pardons through its articles 72 and 161 respectively in addition to the commutation of sentences which may be also appropriated by the government under the provisions of CrPC and IPC. The presidential power acts as a safety valve in exceptional cases where the legal system fails to deliver a morally or politically unacceptable result and hence secures public welfare.

Provisions for granting pardon

In India, the power to grant pardon is conferred upon the President of India and the Governors of States under Articles 72 and 161 of the Constitution of India.

Article 72:

(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 offense:
  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 offense 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.
Thus, Article 72 empowers the President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases.

Article 161:

Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 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

The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. Power differs in the following two ways:
  1. The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
  2. The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.

Need Of Judicial Review
[vi]Article 72 and 161 vest in the executive the humane and vast jurisdictiction to remit, repreive, respite, commute and pardon criminals on whom judicial sentences may have been imposed. The constitutional provisions implicitly allow for a two-tier process of seeking pardon, first from the state governor and then from the President at the center. It is clear from the constitution that like other powers of the president and the governor, the power to pardon is also to be exercised on the advice of council of ministers which means the president yet again acts out as a rubber stamp fulfilling a prerogative as under the constitution.

However, the power of pardon even if it is being wielded by the highest executive authority needs to be exercised in good faith, with intelligent and informed care and honesty for public welfare.[vii] Furthermore, the power to grant pardon is coupled with the duty to act fairly and reasonably. All public power, including constitution power, should never be exercised arbitrarily or malafide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of powers. The Supreme Court has expressed the need to make rules for the guidance in exercise of pardoning power while keeping a large residuary power to meet any special circumstances or sudden developments.

[viii]The Supreme Court observed in 1976 that a President gripped by communal frenzy and directing commutation on religious or community consideration alone, requires to be kept in check. As a remedy, it was thought essential to vest in the courts the power to review such decisions. The politicization of clemency powers is inevitable. For instance, the case of Murugan, Santhan and Arivu (sentenced to death for their part in the conspiracy to kill former Prime Minister and leader of the Congress Party Rajiv Gandhi) as also Mohammed Afzal Guru (sentenced to death for conspiracy in the attack on the Indian Parliament). An instance of gross violation of the governor’s power to pardon was seen in Haryana which involved the murder of Jasbir Singh in which the prime accused Sat prakash and Sabir were convicted and sentenced to life imprisonment and five years rigorous imprisonment by the Supreme Court.

[ix]However, later the same court held that Article 72 has a wide ambit and is indicative enough that it coupled with previous case laws are sufficient and that no precise or clearly defined guidelines are required. Thus, the power of pardon remains unbridled with wide discretion provided to the executive. Moreover, from times immemorial the power of pardon has not so much been an act of grace as a tool of monetary and political aggrandizement. From the outset, the pardon was abused for personal gain. The systematic abuse of the pardoning power and the arbitrary and irrelevant reasons supporting issuance is nothing new to the system.

[x]It can be said that on an average, four to five years are taken for disposal of a mercy petition. Those who have been sentenced for the death penalty have to wait for an agonisingly long time- before the High Courts confirm such a sentence of the trial court, before the Supreme Court disposes off related Special Leave Petitions, and the President, Governor or the concerned governments grapple with the issues of pardon and commutation of the sentence. Such delays add immeasurably to the inhumanity of capital punishment.

Although, in the year 1988 a constitutional bench of the Supreme Court ruled that an unduly long delay in execution of the sentence of death would entitle an approach to the Court, but that only delay after the conclusion of the judicial process would be relevant, and that the period could not be fixed This ruling effectively moved the focus of the question of delay away from the judicial process to that of the process of executive clemency.

However, this issue remains unresolved till date with increasing number of delays in processing and passing of mercy petitions. For instance in the year 2006, there were 23 cases involving 44 condemned prisoners pending for disposal before the president of India. Out of which 2 cases are pending for less than a year, 8 cases for one to three years and 13 cases over three years. 22 petitions filed before the President of India have been processed in the Ministry of Home Affairs and submitted to the Hon'ble President of India for taking a decision on the petitions. One petition is being processed in the Ministry of Home Affairs. Some of the cases were pending before the president from 1998.

Supreme Court On Pardon Power

One of the earliest case of significance where a clemency petition was brought under judicial review was G. Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and Ors, the Court rejected the claim, observing that with respect to actions of the President, the Court makes an almost extreme presumption in favour of bona fide exercise and that the petitioners had shown no reason for the court to consider the rejection of their application as motivated by malignity or degraded by abuse of power. Even while rejecting the writ petition, the Court however sounded a note of caution and stated that the Court would intervene where there was absolute, arbitrary, law-unto-themselves malafide execution of public power.

These parameters for judicial review were reiterated again in Maru Ram v. Union of India and others where the Constitutional Bench further asserted that the Courts would intervene in cases where political vendetta or party favouritism was evident or where capricious and irrelevant criteria like religion, caste and race had affected the decision-making process. Such malafide and extraneous factors vitiate the exercise of pardon power and should be checked through judiciary.

[xi]In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P., it was held by the Supreme Court that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:
  1. The order has been passed without application of mind.
  2. The order is mala fide.
  3. The order has been passed on extraneous or wholly irrelevant considerations.
  4. Relevant material has been kept out of consideration.
  5. The order suffers from arbitrariness.

Executive v/s. Judiciary

Each organ of the government has its own well defined separate powers and hence the legislature or the judiciary cannot interfere with the presidential power. The Executive and the Judiciary are known to have separate paths, then where is their stand in the framework of pardoning power? It is also interesting to note that there may be a conflict between judicial power to pass a sentence or make an order authorized by law and the power of pardon as exercised by the executive.

However, it is a wide belief that there is no conflict between the jurisdictions. If a pardon is granted before or during a trial and accepted, there is no conflict as the jurisdiction of a court to try an accused as it is nothing more than its obligation to decide a matter formally brought before it for determination. And if the pardon is accepted, there is nothing for courts to determine, for pardon can be pleaded in bar to indictment; or after verdict in arrest of judgment, or after judgment in bar of execution and court in giving effect to a plea which gives effect to the law of the land.

In the case of Kehar Singh v. Union of India, it was held that the manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. It was held that it is open to the President under the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court and in doing so, the President does not amend, modify or supersede the judicial record.

The President acts in a wholly different plane from that in which the court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it.

Executive clemency is like the unbridled wind which blows unhindered with least interference of the judiciary and with discretionary powers to the president and the governor. The executive which is mired with its political bias has been granted to make decisions over-riding the decisions of the apex-courts of the country. Does this lead to a decision made in public interest, one which is more humane? The answer definitely is in the affirmative.

In the democracy the ultimate sovereignty lies with the people and through them vests with their representatives. Hence exercise of such power by the political executive by advising head of the state to grant pardon is legitimate. In India the processes have enough checks and balances but never the less more caution is needed to avoid political considerations and exigencies coloring the exercise of the powers of pardon as evident from the past experiences and cases.

A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts. Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the president needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism.

As judicial review is a basic structure of our Constitution, pardoning power should be subjected to limited judicial review. If this power is exercised properly and not misused by executive, it will certainly prove useful to remove the flaws of the judiciary.

Of all presidential perks, the pardon power has a special significance. It is just the kind of authority that would attract the special attention of someone obsessed with himself and his own ability to influence events. -Barbara Olson

  3. American jurisprudence, 2d, 5 as cited in written submissions of Soli Sorabjee as Amicus Curie in the case of Epuru Sudhakar and anr vs. Government of Andhra Pradesh AIR 2006 SC 3385
  7. G. Krishna Goud vs. State of Andhra Pradesh (1976) 2 SCR 73
  8. Maru Ram v. Union of India and others [(1981) 1 SCC 107]
  9. Maru Ram v. Union of India and others
  10. AIR 1991 SC 2147

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