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In Case of Clemency Powers, Can President Investigate Evidence

The clemency power or the pardoning power of the President of India is a Constitutional scheme, which is given with the aid and advice of the Council of Minister. Indian Constitution has not provided any provisions for checks on the exercise of clemency power exercised by the President. The sentiments of the general public for harsher punishment for criminals in cases where offences are punished by capital punishment have attracted the clemency process. The researcher has discussed the clemency power of the President, and also about, can President investigate evidence of the case by exercising its clemency powers.

Introduction
Clemency in layman's language or term means showing mercy to an offender. Clemency power is with President or Governor and is given under Articles 72 and 161 of the Constitution of India. Article 72 gives power to the President to grant pardon, respite, reprieve, remission of punishments or commute the sentence of any person convicted of any offence.

The pardoning power of the President is not absolute because they have to take the aid and advice from the council of ministers. When the President is exercising his power of mercy jurisdiction, there is no mechanism which is provided to us in the Constitution of India where we can question the legality of the decision made by him.

The Governor of each state has been given the clemency power for only minor offences whereas President has the power to grant a pardon and reduce the punishment for major offences and for offences committed in union territories. The purpose of granting a pardon is to save the innocent person from being punished in cases of doubtful conviction or due to miscarriage of justice. It is always said that it is preferable to grant liberty to a guilty offender rather than sentencing an innocent person.

The objective of the Study:

One of the biggest issues related to clemency powers or the pardoning powers of the President of India is that does he have the power to investigate the evidence of the case while exercising his power. Thus, a need to take this study to find out does he have the power or not to investigate the evidence. The paper aims at listing out all the powers which the President has been given under Article 72 of the Constitution of India as Pardoning power.

Research Questions:
  • In Case of Clemency Powers, Can President Investigate Evidence?
Research Methodology:
The researcher has used the doctrinal method i.e., reference from available primary sources like Acts, Rules and Regulations to study the present questions at hand. The researcher has also taken references from secondary sources like books, articles and newspaper reports to understand the issue regarding the clemency powers of the president.

In case of clemency powers, can President investigate evidence?
The President of India has been given clemency powers under Article 72 of the Constitution of India. This article gives the power to the President to grant pardons, respites, reprieves, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence related to cases of death sentence or the cases where the punishment is for an offence against any law relating to a matter to which the executive power of the union extends, or the cases where the Court Martial has given the Punishment.[1]

The clemency powers can be exercised by the President only when the person is convicted of an offence and not before or without such conviction. The power cannot be exercised even when the person is convicted of an offence, but an appeal is pending against such conviction.

The President can also grant the following things such as, he can reprieve the person which means a temporary suspension of the punishment fixed by law; respites the person which means postponement to the future the execution of a sentence; commutation can be given to the person which means changing the punishment to one of a different sort than that originally proposed, and a person can be given remission which means to reduce the amount of punishment without changing the character of punishment.[2]

In Shatrughan Chauhan v. Union of India (2014), the Supreme Court has given the rationale for refusal to frame guidelines for the exercise of clemency power of President and Governor under Article 72 and 161 of the Constitution of India. It was held that there is a presumption that the authority act with due application of mind; and considering the nature of power given under the articles, it is necessary to follow specific guidelines. They give decisions with the aid and advice of the Home Minister.[3]

The court has also laid down in certain cases that the power under Articles 72 and 161 of the Constitution of India have to be exercised with great care and caution and is subject to judicial review.

The President under Article 72 has the power to go into the merit of the case and investigate the evidence. He will give the decision with the aid and advice of the council of ministers.
Under Article 72 the President while exercising the power can go into the merit of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court.

This article gives the power to the President to investigate the evidence of the case and to decide whether this case is one deserving to grant a pardon falling within his power.[4] On the basis of the evidence, the President can come to different conclusions as given by the court with regard to the guilt of, and sentence imposed on the accused. The President while exercising such right under this Article cannot modify, amend, or supersede the judicial record which remains intact and undisturbed.[5]

In the case of Kehar Singh v. Union of India
Kehar Singh was convicted for the offence of criminal conspiracy under Section 120B of the Indian Penal Code read with Section 302 (Punishment for death) in connection with the assassination of Smt. Indira Gandhi. He was sentenced to death by the learned Additional Session Judge of New Delhi. An appeal was filed before the High Court and was dismissed by the Court. An appeal by special leave petition was filed by Kehar Singh in Supreme Court against his conviction and sentence of death, which was dismissed by the Supreme Court, later a review petition was filed by him which was also dismissed by this court, and after that, a writ petition was filed by him which was also dismissed by this court.[6]

Later a petition was presented before the President of India by Rajendra Singh's son under Article 72 of the Constitution for granting pardon. Kehar Singh's lawyer wrote to the president, presented the case, and asked for an opportunity to hear on the matter. The President dismissed the petition (November 24, 1988) and Kehar Singh was informed of the dismissal of the petition.

On December 1, 1988, a petition was filed with the Delhi High Court seeking an order prohibiting the defendant from executing the death penalty, but the High Court rejected the petition. After that Special Leave Petition before Supreme Court was filed, and after receiving the petition, the Court accepted the writ petition and for the time being, decided to stop the execution (order for the same was passed).

The Court with respect to Article 72 has said that this article falls within their area and they can examine such decision of the President by way of judicial review. The court also held that the President has the power to go into the merits of the case and the decisions given by him can be called for judicial review if it is falling within the strict limitation defined in the Maru Ram case.

One issue was whether the petitioner is entitled to an oral hearing from the President on his petition invoking the powers under Article 72. The Court with respect to how the petition should be considered has said that President has the discretion to decide the manner in which the petition should be considered, and petitioner here will have no right and they can also not insist before the Court that they will be presenting an oral argument before them with respect to that petition. The Court also said that it is for President to decide how best he can acquaint himself with all the information and evidence necessary for the disposal of the case.[7]

The Court with respect to how the petition should be considered has said that President has the discretion to decide the manner in which the petition should be considered, and petitioner here will have no right and they can also not insist before the Court that they will be presenting an oral argument before them with respect to that petition
The Supreme Court said that under article 72 the power should be construed in the widest possible manner without the court interfering to lay down the guidelines of any sort and the court went on to say that this power may be exercised to correct judicial errors and for the reason of state.

Judicial error is a situation when the court has not taken or looked into the matter which is important for the case and the evidence which they have missed is important for the accused to get acquitted. Here the slightest mistake by the court can destroy the life of the accused and can land him in jail. So when these type of situations arises, the President on the request of the accused side can look into the matter if he deems fit and on the basis of that he can go into the merit of the case and can investigate the evidence and if, on the basis of the evidence he gathers that the person is not guilty of the offence, he can grant pardon with the aid and advice of the council of minister.

For instance, if the accused is guilty of murder but has been charged and convicted for culpable homicide not amounting to murder because the court has not properly looked into the evidence. Here they have done an error because of which the accused had been sentenced to a lesser punishment.

In the case of Maru Ram, the Supreme Court has said that the order passed by the President should not be mala fide, or shall never be exercised arbitrarily, or the relevant matter is kept out of consideration. If the decisions are based on the basis of these then the court has the power to judicially review the President decision.[8]

In the case Yakub Abdul Razak Memon, the accused was convicted for his involvement in Mumbai serial blast case in 1993 by the Special Terrorist and Disruptive Activities Court in July 2007. He filed a mercy petition before the governor of Maharashtra but was denied and the court held that since his crime is of such a nature, and he is involved in so many activities his punishment should not be reduced and should be given the death penalty as an example of justice.[9]

In the Maru Ram case, the Supreme Court also held that President under Article 72 must not exercise the power on their own, but they should act with the aid and advice of the council of ministers. [10]

Conclusion:
To conclude it can be seen that President has been given the power to pardon under Article 72 of the Constitution of India. He can go into the merit of the case and can investigate the evidence. President decision can be reviewed by the court only when he has not given the decision fairly, or has given a mala fide decision, or has not considered the relevant matters.

The President give decision with the aid and advice of the council of minister. The pardoning power should not be absolute, and the judiciary should not interfere too much in the pardoning power. If this power is used properly and misused, then it will certainly prove to be beneficial for the accused as well as for society.

Bibliography
Acts/ Regulations/ Rules Referred
  1. Constitution of India
Books
  1. V.N. Shukla's, Constitution of India.
  2. M.P. Jain, Indian Constitutional Law.
Articles
  1. Dr Suresh V. Nadagoudar and Sanjeeve Gowda.G.S., Presidential power to pardon in India
Websites Referred:
  • www.sci.gov.in
  • www.advocatekhoj.com
  • www.ijlljs.in
End-Notes:
  1. V.N. Shukla's, Constitution of India, Thirteenth Edition, (2016).
  2. M.P. Jain, Indian Constitutional Law, Eighth Edition, (2018).
  3. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 191.
  4. Dr Suresh V. Nadagoudar and Sanjeeve Gowda.G.S., Presidential power to pardon in India.
  5. Maru Ram v. Union of India, AIR 1981 SC 107.
  6. Kehar Singh v. Union of India, AIR 1989 SC 653
  7. Ibid
  8. Yakub Abdul Razak Memon v. State of Maharashtra, through CBI, Bombay, 2013.
  9. Supra 5.
Written By: Samyak Lunia, 4th Year BBA LLB Student at Bennett University, Greater Noida
LinkedIn:https://www.linkedin.com/in/samyak-lunia-1431b71a0

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