PRESIDENTIAL POWER OF PARDON

Author(s): Balakrishna
Source: Journal of the Indian Law Institute , JANUARY-MARCH 1971, Vol. 13, No. 1
(JANUARY-MARCH 1971), pp. 103-120
Published by: Indian Law Institute

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 PRESIDENTIAL POWER OF PARDON

the question for consideration is the extent of power of pardon of

punishment which the President of India possesses? Can he, for instance,
grant pordon to a person against whom there is a bare accusation that he
(that person) had committed an offence but who is not under trial or
though under trial has not been convicted ?

The answer to this question must be sought within the provisions of

the Constitution of India itself, and not on the basis of any analogy
between the offices of the Indian President and that of the British Crown.
It is, indeed, unfortunate that most of the Indian jurists whether on the
Bench or or the bar have an unstated premise in their mind that the
Constitution of India is based on the British Constitution and so it can be
interpreted in terms of the British Constitution. These jurists have been
brought up on the milk of British jurisprudence and are so immersed in it
that it is very difficult for them to abstain from looking on things through
the tinted glasses of British constitutional history. The Indian Constitution
is fundamentally different from that of Britain. It is written as against
the British Constitution which is largely unwritten. In India the judiciary
has the power of reviewing Parliamentary legislation for ascertaining its
vires while in England no court of law possesses that power. Its normal
structure is federal while that of England is unitary. It operates in a
social millieu which is wholly different from that of England. The powers
of the Union legislature are delimited as against the powers of the British
Parliament which possesses plenary powers not in any way limited by law.
It has an elected executive head of the state as against England where the
executive head is a hereditary monarch. Besides, the President of India,
unlike the Crown in England, is not the defender of the faith nor the
fountain of justice. He is principally the chief executive of the Union.
His powers and functions are specified in the Constitution whereas the
powers of the Crown are more or less a function of history. The President
of India has no prerogatives ; he has only powers granted and functions
enjoined by the Constitution of India. There being vital distinctions
between the two, it is not permissible to proceed on the presumption that
the powers of the President of India are those which are enjoyed by the
British Crown at the present day. It would be wholly misleading to
presume that the merey prerogative of the British Crown and that of the
Indian President is coeval. It is, therefore, submitted that the right
approach would be to keep in view the provisions of the written constitution
and the historical circumstances of India and in any case not to forget

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104 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 13 : 1

even for a moment the difference between the two constitutions and the
two offices.

The power of pardon has been granted to the President of India by

article 72 of the Constitution. It is as follows :

(1) The President shall have the power to grant pardons, reprieves,
or remissions of punishment or suspend, or remit or commute
the sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by a court
martial ;
( b ) in all cases where the punishment or sentence is for an
offence against any law relating to any matter to which the
executive power of the union extends ;
(c) in all cases where the sentence is a sentence of death ;
(2) Nothing in sub-clause (a) of clause (1) shall affect the power
conferred by law on any officer of the Armed Forces of the
Union to suspend, remit or commute a sentence passed by a
court martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to
suspend, remit or commute the sentence of death exercisable by
the Governor of a State under any law for the time being in
force.

For the correct interpretation of this article three words are extremely
material. These are 'punishment', 'sentence' and 'offence'. It is evident
from the use of the first two words that the power of granting pardon
which the President has under this article may be used either to save a
person from the consequences of an offence or from punishment. In this
article the third word 'offence' is also material. The way in which it has
been used in sub-clause (b) of clause (1) of article 72 makes it clear that
the aforesaid punishment or sentence must be in respect of an offence.
This would be evident from the words 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." It appears, therefore, that the punishment
that has to be pardoned must be in respect of an offence and not for any
simple breach of a condition on which any franchise has been granted.
This is so because the term 'offence' is defined in the General Clauses Act,
1897. The Act applies to the interpretation of the Constitution by virtue
of article 367. Consequently, unless the context otherwise requires, it will
have to be taken for granted that the word 'offence' has been used in this
article in the same sense which has been given to it in that Act. That
definition is as follows : "An act or omission made punishable by law for
the time being in force," There is nothing in article 72 to show that this
meaning of the term 'offence' is not intended in that article. On the

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 1971] PRESIDENTIAL POWER OF PARDON 105

contrary, in that article it has been used in that se

it would appear that whatever power of pardon
be used only (1) in respect'of an act which, in
offence (2) which offence is in respect of a matter
power of the Union extends and (3) for which p
been adjudged.

A person can be sentenced to punishment on

convicted of an offence for which it is proposed to
him. Until a person has been convicted for an offe
current in the country deemed to be innocent. There cannot be two
opinions that during the British regime itself this legal principle had become
well established in this country and had become an integral part of the law
of the land and even today it continues to be in force by virtue of article
372 of the Constitution. Indeed, it is the fundamental principle of our
jurisprudence that even though a person is accused of having committed
an offence, he will be presumed to be innocent until it is proved beyond
doubt that he had committed that offence which is charged agatnst him.
Consequently, a person against whom an investigation has not been carried
out for an offence alleged to have been committed by him and who has not
been given a fair and full trial for that offence and against whom the court
has not held that the offence charged against him has been proved beyond
doubt, to have been committed by him and who, consequently has not been
by the court is deemed to be innocent and the question of granting a
pardon to him does not in principle arise. From this it should be clear
that the Chief Executive can exercise the power of pardon in the case of a
convicted person, Normally, this should be the case in every country, in
which the rule of law prevails in the sense in which in does in England.
The President or a head of a state is granted the power of pardon with the
view that there should be provision in the law to save a person from the
consequences of a punishment adjudged by inadvertence or mistake against
that person by judiciary which being a human institution is likely to err.
It is for that reason that provision is made in every Constitution, whether
monarchical or democratic, for the power of granting pardon. This
position has been aptly stated1 in the following words :

The object of pardoning power is to correct possible judicial errors for no

system of judicial administration can be free from imper fections. It is an
attribute of sovereignty wherever the sovereignty may be to release a convict
from a sentence which is mistaken, harsh or disproportionate to the crime.2

This being the case, the question of the President granting pardon to
a person who has not been convicted of an offence should not arise. If a
1. Biddle v. Perovich , 2?4 U.S. 480 (1926); Exporte , Grossman , 267 U.S. 87 (1924);
Nanavati v. State of Bombay A.I.R. 1961 SC. 1 12.
2. 2 Basu, The Constitution of India 402 (5 ed. 1965).

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106 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 1

person, who affirms that he is innocent, is nevertheless granted pard

the executive head he can well retort that since I have not committed
offence, so the question of the President granting me pardon canno
does not arise at all.

Another situation may also be considered : whether the word Offence'

includes an act for which trial is not held by courts of law but is held
by a tribunal under a law which has not given that act the character of
an offence. For instance, can it be said that the action of licensee in
not complying with the terms of the licence and the order made by a
tribunal after consideration in accordance with the provisions of the law
governing that licence cancelling the licence for non-compliance with the
terms thereof be respectively termed as 'offence' and 'punishment'. It
is submitted that such an action would not be comprehended in the term
'offence,' because the expression "breach of conditions" and not the term
'offence' is used in such a context. In other words, the term 'offence'
includes only those acts or ommissions which are offences under the Indian
Penal Code or corresponding law and for which prosecution is carried on
in accordance with the law which has given that 4 act' the character of an
offence. If a person is tried for an act which falls within the definition of
the term 'offence' as given in the Indian Penal Code but which is tried not
under the Code of Criminal Procedure but under law which has not given
that act the character of an offence, then that investigation or inquiry
would not be an inquiry for an offence, because the Act under which the
inquiry is held has not characterised that act as an offence. Consequently,1
whatever action is taken on the basis of that enquiry would not be punish-
ment in the sense in which the term 'punishment' has been used in article
72. Punishment used in that article means a punishment awarded for an
offence, but since, the aforesaid proceedings would not have been in respect
of an offence, so action following thereupon cannot fall within the meaning
of the term 'punishment' as used in that article. This view gets ample
support from the judgment of the Supreme Court which it pronounced in
Maqbool Hussain v. State of Bombay .3 In this case the Court observed :

It is clear that in order that the protection of Article 20(2) be invoked by a

citizen there must have been a prosecution and punishment in respect of the
same offence before a Court of law or a tribunal, required by law to decide
the matters in controversy judicially on evidence on oath which it must be
authorised by law to administer and not before a tribunal which enter-
tains a departmental or administrative enquiry even though set up by a statute
but not required to proceed on legal evidence given an oath. The very
wording of Article 20... would indicate that the proceedings therein contemplat-
ed are of the nature of criminal proceedings before a Court of law or a
judicial tribunal.. An accordance with the procedure prescribed in the statute
which creates the offence and regulates the procedure A

3. A.I.R. 1953 S.C. 325.

4. Id. ut 328.

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1971] PRESIDENTIAL POWER OF PARDON 107

This was followed by the Court in S.A. Venk

India.5 In that case the Supreme Court went a little
before article 20(2) could be invoked, it is essential that the earlier
prosecution must have been under the Act which created that offence. It
is, no doubt, true that these were cases under article 20(2) of the Constitu-
tion of India but the import of the terms 'offence' and 'punishment' has
been determined in these cases and in so far as the import of these two
terms is concerned, the opinion expressed therein is fully applicable to the
construction of the terms 'offence' and punishment* occurring in article 72.
It should, therefore, be evident that before the question of the exercise of
the power of the President to grant pardons can arise the person to whom
pardon is granted must have been awarded punishment or sentenced by a
competent court of law or judicial tribunal.

It sometimes happens that a revolt or other political commotion takes

place in a country. On such occasions the head of the state makes a
proclamation that the rebels who surrender shall be granted pardon for the
offences they have ommitted. May it be said that the President of India
does not have this power under article 72? But in this connection the
matter which needs particular attention is that whatever words may have
been used in the proclamation, the President or head of the State in actual
fact does nothing more than give a promise that whatever action could be
taken against the rebels for their misdemeanours and felonies would not be
taken against them. So even if the word 'pardon' may have been used in
the proclamation, in actual fact the action of the head of state does not
amount to grant of pardon of punishment. At the time of the issue of
declaration no person would have been awarded any punishment. Assuming
that the rebellion fails and quite a number of persons are arrested for
having participated in it, even then such persons cannot be held to be guilty
of any offence nor any punishment can be awarded to them until it is
proved beyond doubt that such persons had actually participated in the
rebellion. So the question of granting pardon of punishment to such
persons can arise only when a competent court would have held that such
persons had actually participated in it and so having been convicted for the
same have been sentenced to a specified punishment. So whatever may be
the words used in the proclamation in actual fact there is no grant of
pardon of punishment but it is only a promise not to take any action against
the rebels. Pardon is granted to a specified individual while the promise
not to take action on the rebels surrendering arms is addressed to an uns-
pecified body of rebels. Such an action, therefore, may not be termed grant
of pardon in the sense in which the expression is used in article 72. D.D.
Basu, in his commentary on the Constitution of India remarks,

The pardoning power should be distinguished from amnesty, While a pardon

5. A.I.R. 1964 S.G. 375.

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108 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 1

remits the punishment imposed by a court upon an offender , amesty overlooks

the offence and absolves the offender from penalty.6

He is of the opinion that the President does not have the power
granting amnesty to the rebels. According to him, this power is ves
only in the Parliament. In this connection, attention may be drawn to
fact that the power of pardon granted to the President under article
not unlimited, but is only in respect of the offences which have
indicated in sub-claused (a) (b) and (c) of clause (1) of that article. Ind
it has been clearly laid down in sub-clause (b) of that article tha
President can exercise that power only in respect of subjects to which
executive power of the Union extends. Thus, if the rebellion is again
state government the offer of amnesty may be made only by the conc
state. Be it as it may at least this is quite evident that pardon and am
differ in their import and so amnesty does not fall within the amb
article 72.

It may be argued in this connection that the language employed in

article 72 does not necessarily denote that the power of pardon granted to
the President is qualified by sub-clause (b) of clause (1) of that article.
The expression "The President shall have the power to grant pardons,
reprieves, respites or remissions of punishment" is complete in itself and
has been bodily taken from section 295(2) of the Government of India Act,
1935. This expression has been employed in that Act in connection with
the Crown of England, and it is not followed in that Act by such a
qualifying clause or sub-clause as is the sub-clauses of article 72. It may
be therefore, urged that this expression should be read separately form the
sub-clauses and that the sub-clauses shall be deemed to qualify the
expression " 'suspend', 'remit' or commute the sentence of any person
convicted of an offence." If this reading is adopted then the power of
pardon granted to the President is found to be unlimited as it should be
in the case of the head of a sovereign state. It is submitted that this
paragraphing of article 72 would not be correct because had it been so,
then the expression 'punishment' would not have been used in sub-clauses
(a) and (b) of clause (1) of that article. Besides, there would have been
no occasion to make the provision contained in clause (c) of clause (1) of
that article, for the simple reason that when the President had an unlimited
power granting pardon, then he could have used that power in all
circumstances in the case of a death sentence, irrespective of whether or

6. The Supreme Court of the United State also expressed the same opinion in
(1914) 59 Law. Ed. 476 (E). It observed :
Amnesty and pardon are of different character and have different purposes.
The one overlooks the offence, the other remits punishment . Amnesty is usually
addressed to classes or even communities. The function is exercised when it
overlooks the offence and the offender leaving both in oblivion
Id. at 482,

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Í9?l j PRESIDENTIAL POWER ÒF PAŘDOŇ Ìtì$

not that sentence of death had been pronounced in respect of

under a law relating to a subject to which the executive pow
Union extended. The truth is that the Crown of England had under
the Government of India Act, 1935 overriding suzerainty over all the
authorities, whether central or local, established by law in India, and in the
eyes of law they were all subject to his control. Indeed, it is clear from
section 2 of that Act that the sovereign power over India continued to
remain vested in the Crown of England. He had thus overriding control not
only over the Governor General but also on the governor. He could disallow
any Act of the provincial legislature. So the English Crown had the power
of granting pardon of punishment awarded for offences whether under the
federal or the provincial laws. But that power could not be conferred in full
measure on the President of India for the simple reason that the soverign
power over India was not vested in the President but in a sense in the entire
constitutional polity. So, in accordance with the requirements of a federal
polity, a distribution of that power was unavoidable and the expression
'power to grant pardon' in article 72 was qualifiediby sub-clauses (a), (b)
and (c) and the word 'punishment' was inserted in sub-clauses (a) and (b).

It may be that the expression "the President shall have the power to
grant pardons, reprieves, respites or remissions of punishment" may be
read as (/) the President shall have the power to grant pardons, reprieves,
respites; and (//) the President shall have the power to grant remissions of
punishment." In this case, the difficulty pointed out above would not
arise because the qualifications contained in clauses (a) and (b) would then
apply to remissions and not to pardons. But such a paraphrasing of this
provision would not only be contrary to the rules of grammar but also
would make the power of the President to grant pardon, comprehend all
kinds of liabilities, be they civil or criminal. The king of England has the
power of granting pardon even in respect of specified civil matters. But
it may not be urged that in India the President has the power of granting
pardon in those civil matters. If the term 'pardon' is not read in
conjunction with the term punishment, then a power would have been
conferred on the President of India in respect of civil obligations which
was never possessed by the Crown in India. Another extraordinary result
that would follow would be to invest the governor with unlimited power
of pardon under article 161. In that article the same expression, namely,
the power to grant pardons, reprieves, respites or remissions of punishment
occurs. Can it be said that the governor of a state has unlimited power
to grant pardons in respect of any matter even though that matter may not
be within the jurisdiction of the state of which he is the governor ? Were
this to be the case, there would be anarchy in the field of law because in
that case a governor of Uttar Pradesh may grant pardon to a person who
may have been convicted by the High Court of Madras for an offence
under a law of the Madras State.

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110 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

II

We have proceeded so far on principles, and on an analysis of the

language employed in the article under consideration. Reference may no
to be made to judicial authorities bearing on articles 72 and 161. One is
a Madras High Court judgment pronounced in Channagadu and others 7
and the other is K.M. Nanavati . v. State of Bombay 8. The facts in the fi
case were as follows. On the occasion of the formation of the state of
Andhra Pradesh the governor without reference to any provision of law
issued an order granting amnesty to condemned prisoners. Some of these
persons had been sentenced to death and their cases were pending before
the High Court for confirmation of their death sentences. Some of them
had also filed appeals against their conviction. When their cases came up
for hearing before the High Court, a question arose as to whether the act
of the governor was valid. The advocate general conceded that even
though the prisoner had been granted amnesty the High Court could
proceed to decide as to whether they had been rightly convicted. The High
Court in view of this position having been conceded observed that they
proceed to consider whether the condemned prisoners had been rightly
convicted. But in view of the fact that arguments had been addressed as
to the power of governor to pardon the prisoners they said that they would
like to express an opinion on that issue. Thereafter the High Court held that
the workings by which the power of granting pardon has been conferred
on the President of India and the language by which the power of granting
pardon had been conferred on the President of the United States are more
or less similar. It is respectfully submitted that the assumption is not
wholly correct. Article 2, section 2 of the Constitution of the United
States defines the President's powers in such matters and the material
portion of the article runs as follows :

The President shall have the power to grant reprieves and pardons for
offences against the United States except in cases of impeachment.
US Vs India
What needs attention is that in the said article the word offence , not
punishment , has been used whereas in article 72 of the Constitution of
India the word punishment has been used. There is a vital distinction
between the meanings of the word 'offence' and the word 'punishment'.
Offence is any act or ommission for which punishment has been prescribed
by a law. It is punishable because it causes injury to the entire polity
and also to some particular person. It is, therefore, merely an act of a
person for which the state may punish him. But the word 'punishment'
in respect of a person means depriving him of the right of life or other
rights in the implementation of a judgment of the court. So in respect
of the offence committed by a person a promise can be given at any time
7. A.I.R. 1954 S.C. 375.
8. A.I.R. 1961 S.C. 113. Cited hereinafter as Nanavati only.

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The U.S. Supreme Court's view that not prosecuting someone for an offence can be
considered a form of pardon. However, the article argues that this interpretation
cannot be applied to the Indian context without consideration of local laws and
practices. The Indian Constitution and legal principles may have different implications
regarding the terms "pardon" and "amnesty."
1 911] PŘEŠtDENŤIAL POWER OP PARĎÓŇ lil

that in public interest it would not be expedient to award h

ment for that act. But in respect of punishment, pardon
only when the court has already adjudged the punishment
It is, no doubt, true that the Supreme Court of the Un
termed the promise not to proceed against the offender f
committed by him as pardon but keeping in view the peculi
of India that does not justify us in holding that the word
Constitution has the same connotation which that word in the Constitution
of the United States has in the light of this judgment, Further, the power
which the governor purported to exercise was in respect of pe-sons who
had already been convicted. It is, true that the death sentence awarded to
them was pending confirmation by the High Court. But so long as the
High Court does not pronounce its decision, the conviction continues to
stand. That court has, no doubt, the power to reverse the conviction and
acquit the accused. But until it does so the conviction of the accused
stands and it is under that conviction and sentence that he is kept in jail.
The use of the expression 'annul' the conviction used in clause (b) of
section 376 of Code of Criminal Procedure, 1898 shows that until the High
Court decides otherwise the conviction by the lower court continues to
stand. It is, therefore, obvious that in this case amnesty had been given
only after conviction .

The Supreme Court in the Navavati case had to consider the following
fact-situations : Nanavati had been convicted by the High Court and had
been sentenced to several years imprisonment. With a view to filing an
appeal in the Supreme Court, Nanavati applied to the High Court for a
grant of certificate that the case was fit one for appeal to the Supreme
Court. The High Court, however, rejected his application. So Nanavati
applied to the Supreme Court for granting special leave to appeal.
Meanwhile the governor of Bombay issued an order suspending the
sentence of Nanavati immediately after it had been passed and the suspen-
sion was to remain operative until the Supreme Court had taken decision
on the application for special leave filed by Nanavati. Rule 5 of the
Supreme Court rules has a provision that a person desirous of obtaining
special leave to appeal must first surrender to his sentence and to the
authority which is competent to keep him in safe custody. Since Nanavati
had not done so the question arose whether his petition could be heard
without his having complied with rule 5. It was urged on behalf of
Nanavati that the power of granting pardon which the governor enjoys
was unlimited and, therefore, the governor could suspend the sentence and
having done so there was no sentence in existence any more and so rule 5
of the Supreme Court Rules was not attracted. After due consideration of
this point, the Supreme Court by majority decided that unless Nanavati
surrendered to his sentence, his petition could not be heard on account of
the provision of rule 5 of the Supreme Court Rules. It was canvassed in

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1 12 JOURNAL OF TtíE ÍNDÍAÑ LA W ÍNSTÍTUŤĚ [Vol. lá : 1

the Court that the power of President to grant pardon was unqualified. In
this connection, reference was made to the prerogative of mercy which the
British Crown exercises. Reviewing the prerogatives of the Crown the
Court held that "the prerogative is no greater than the law allows."9 But
the majority of the Supreme Court declined to go into a detailed examina-
tion of the prerogative of the Crown to grant pardon. They observed :

The controversy raised by the present petition is within a very narrow

compass and so consideration on the wide and absolute character of the
power to grant pardon and overemphasis on judicial decisions which deal
directly with the said question would not be very helpful for our present
purpose. In fact, we apprehend that entering into an elaborate discussion
about the scope and effect of the said larger power in the light of the relevant
judicial decisions is likely to create confussion and distract attention from
the essential factors of the very narrow point that falls to be considered in
the present case- That is why we do not propose to enter into a discussion of
the said topic or to refer to the dicisions cited.10

It is, therefore, obvious that even this decision does not establish that the
power of the President or the governor, as the case may be, is unqualified
and that it can be exercised at any time that is to say even before conviction.
It is true that the Court has observed in its judgment that :

There can be no doubt that it is open to the Governor to grant a full pardon
at any time even during the pendency of the case in this court in exercise of what
is ordinarily called 'mercy jurisdiction'.11

But this observation does not imply that that a person who is accused of an
offence but has not been by that time convicted, can be granted pardon by
the President or the governor. The words which have been italicized make
it clear that pardon may be granted even to a person whose appeal is
pending in the Supreme Court. But that person would at that time must
be a convict. Indeed, this has been made quite clear by the Supreme Court
itself in the sentence that follows. The Court says :

Such a pardon after the accused person has been convicted by the court has the
effect of completely absolving him from all punishment or disqualification
attaching to a conviction for a criminal offence ,12

9. Id . at 118. The Court then gave the following citation from Attorney General
vē De Keysers Hotel Ltd., [1920] A.C. 508 at 526.
The prerogative is defined by learned constitutional writer as the residue of
discretionary or arbitrary authority which at any given time is legally left in
the hands of the Crown, In as much as Crown is a party to every Act of Parlia-
ment, it is logical enough to consider that when the Act deals with something
which before the Act could be effected by the prerogative and specially em-
powers- the Crown to do the same thing but subject to conditions, the Crown
assents to that and by that Act to the prerogative being curtailed.
Nanavati at 118-9. Emphasis added.
10. Id. at 119.
11. Id. at 123. Emphasis added.
12. Ibid.

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i9łlj PŘÉŠÍDENTIAL POWEk OF PARDOŃ Hi

It is clear from this extract that the question of grant of pardon a

after conviction because it is only then that a convicted person
from the disqualification attaching to the conviction.

Justice J.L. Kapur gave a dissentient judgment. And a dis

judgment of a Supreme Court Judge has its own significance. T
judge has stated in this case that the power of pardon prior to conv
be exercised by entering the plea of nolle prosequi . The doctri
prosequi is incorporated in section 333 and 494 of the Code of C
cedure.13 By virtue.of these provisions the state can withdraw fro
proceeding-and thus get it terminated. It may be mentioned that t
is not identical with or an integral part of the power of pardon. Th
of the learned judge that nolle prosequi is an element of power
was not accepted by the majority of the Court. The majority o

It may be mentioned that that power is not analogous to the power of

though its exercise may result in a case in a court coming to an end...
case, these proceedings being not in the nature of pardon or suspens
remissions or commutation of sentence...14

It would not be improper to mention here that by virtue of this power the
State can give an assurance to rebels against its authority that if they
surrender arms, no action would be taken against them and when none of
them would have been convicted and punished for an offence then under
the existing conditions in our country where there is rule of law and not
of any person, no disqualification or liability can attach to him. Our
consideration makers were conversant with these provisions of la w prevalent
in our country. Consequently, they were not under a compelling necessity
to make the power of pardon so extensive as to make it possible for the
President by the exercise thereof to give an assurance to the rebellious that
no action would be taken against them (rebellious) for any of their rebellious
activities., That assurance could be given under the then existing provisions
of the law for so far as the question of any criminal proceedings against
rebels are concerned the state alone has a right to initiate such proceedings
against them. The state can abstain from bringing any criminal proceed-
ing against the rebels. Even if any proceedings had been brought, it can
get them terminated by entering the plea of nolle prosequi . Since it alone
is entitled to commence such proceedings so the provision that on the
advocate general stating that he is not interested in further prosecution,
13. The Code under Section 337 and 338 contains provisions for tendering pardon*
to an approver in a criminal case.
14. Nanavati at 123. See also Maitland, Constitutional History of England 481
(edn, 1941) :
The King's Attorney General has power to stop any criminal prosecution with-
out pardon . All criminal proceedings (now that appeals are abolished) are in
law at the suit of the King Rex v. A.B. If the King's attorney general states
that he will not prosecute (enters a nolle prosequi), then proceedings are at
an end.

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ÍÍ4 JOtJRŃAL ÒP TñE tNĎIAN LÀ W INŠŤITUŤE [Vol. lí : 1

the accused will only be discharged and not acquitted has not much
significance. The same can be said about section 494 because when the
state is not anxious to get the rebels punished then the court is not likely to
stand in the way of their not being prosecuted.

It may be repeated here that in England as also in United States

of America the question of grant of pardan before conviction arises only in
connection with making an accomplice a state witness or in connection
with rebellions. In no other case has the question of grant of pardon
before conviction arises in these states. So if the significance of the two
kinds of provisions mentioned above is kept in view it would be evident as
to why in India the power of pardon has been given only in respect of
punishment and as against the provisions of law of England and the United
States it was not related to offence itself. The reason was that in our
country there were already legal provisions for meeting the contingency of
an accused being made a state witness or rebels being given an assurance of
not being criminally prosecuted. So there was no possibility of a situation
arising which arises in England and the United States, because of the absence
of the legal provision in their criminal procedural law in respect of these two
matters. For that reason it would appear in India the term 'punishment'
was used instead of the term 'offence' in respect of the power of granting
pardon. Indeed, this had been done during the British regime itself.
Provisions, for the suspension of sentences and remission of punishments,
and commutation of sentences were to be found already in chapter twenty-
nine of the Code of Criminal Procedure, 1898. These were15 contained
in sub-sections (5) and (5- A) of section 401; they ran as follows :

(5) Nothing herein contained shall be deemed to interfere with the right of
his majesty or of the Central Government when such right is delegated to it
to grant pardons, reprieves, respites or remissions of punishment.
(5a) Where a conditional pardon is granted by His Majesty or, in virtue of
any power delegated to it, by the Central Government any condition thereby
imposed of whatever nature, shall be deemed to have been imposed by a
separate sentence under this Code and shall be enforceable accordingly.

The opening words of sub-section (1) of section 401 are : "Where any
person has been sentenced to punishment for an offence... Reading the
three sub-sections together it would be evident that the British Crown
exercised his prerogative or granting pardon to an accused only after the
accused had been convicted. So far as free pardon was concerned it was
only in respect of punishment, In this connection, attention may be
drawn to the fact that in section 3(2) of the Code of Criminal Procedure
1898 it has been laid down that words and expressions used herein and
defined in the Indian Penal Code and not herein before defined shall be
deemed to have the meanings respectively attributed to them by that Code.
Even though the word 'punishment' has not been specifically defined but
15. Omitted by Amendment of 1950.

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 19?1] PŘEŠtDEŇTtAL POWER ÖP PARĎOŇ ìli

the various kinds of punishment have been enumerated

Penal Code. So the word 'punishment' used in the aforesaid
no other meaning than what it has in the Indian Penal C
British Crown in India had the power to grant pardon only
the matters which have been enumerated in the sections of the Code and
which have been cited above and he could grant pardons in respect of
punishment only.

Keeping;this legal back-ground in view we might now examine section

295 of the Government of India Act 1935. That section is as follows :

(1) Where any person has been sentenced to death in a province, the
Governor General in Council in his discretion shall have all such power of
suspension, remission, or commutation of sentence as were vested in the
Governor General In Council immediately before the commencement of
Part III of this Act, but save as aforesaid no authority in India outsicle a
province shall have any power to suspend, remit or commute the sentence
or any person convicted in the province.
Provided that nothing in this sub-section affects any power of any
officer of His Majesty's forces to suspend, remit, or commute a sentence
passed by a court martial.
(2) Nothing in this Act shall derogate from the right of His Majesty or the
Governor General, if any such right is delegated to him by his Majesty, to
grant pardons, reprieve, respites or remissions of punishment.

The matter that needs special attention is that the language of sub-section
(2) of section 295 is in all material respects identical to sub-section (5)
of section 401 of the Code of Criminal Procedure 1898 as it was prior to
1950. In so far as the phrase "grant of pardons, reprieves, respites or
remissions or punishment' is concerned, it is exactly the same as it was
in the said sub-section (5). Consequently, in accordance with the principle
of interpretation that unless the context shows otherwise, it should be
assumed that identical language in two different Acts has the same import,
the word 'punishment' in setion 295(2) of the Government of India Act
should be deemed to have the same meaning which it had in sub-section
(5) of section 401. Attention may also be drawn here to the fact that in
the said section 295(9) of the Government of India Act, 1935, the word
'right' and not the term 'prerogative' has been used. This would show
that the British Crown instead of using his full mercy prerogative in India
exercised only the right of granting pardon in respect of punishment.

It may also be mentioned that even though the Code of Criminal

Procedure, 1898, had been enacted by the Imperial Legislative Council of
India it had been assented to by the Governor General on behalf of the
Crown. Consequently, in so far as India was concerned, the prerogative
of the Crown to grant pardon was affected by that Act to the extent that
the plenary mercy prerogative of the British Crown came to be circums-
cribed in respect of the matters for which provision had been made by

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i Í6 JOURŃAL ÒF TÈE ÌNDÌAti LA W ÍNŠTIŤUŤĚ [Vol. lì : i
section 333 of that Code. It would be remembered that section 333 of
that Code makes provision for tender of pardon to an accomplice with the
object of making him a state witness. In that section, unlike section, 401,
there is no saving provision in respect of the right of British Crown to
pardon. So it would not be improper to assume that the British Crown
was not prepared to exercise its power of pardon to the same extent to
which it exercised it in England. It is for that reason that while laying down
the right of the British Crown to grant pardon in India the term 'punishment'
alone was taken from amongst the several matters that had been enumerated
in the Institutes of Coke. This is significant and it would not be improper
to say that upto 1947 the British Crown did not exercise in India the
extensive power of pardon which he had the right to exercise in England.
This view gets support from the fact that during the entire duration of His
Majesty's rule in India there was not a single occasion when the British
Crown or the Governor General on his behalf granted pardon to any
person before the latter's conviction. It is also to be remembered that
during that period there were several insurrection but in none of them was
pardon granted before conviction.

This was the legal position which the Constitution makers had in
their view. They thought it proper to retain that position after modifying
it in accordance with the requirements of our federal polity. It is for
that reason that the language of article 72 is more or less identical with
the language of article the Government of India Act 295(2) of 1935.
Be it what it may, it cannot be gainsaid that the term 'punishment' used
in article 72 has been used in section 401(5) of the Code of Criminal
Procedure and section 295 of the Government of India Act 1935. It is
evident from the context of (now deleted) sub-section (5) of section 401) of
the Code of Criminal Procedure of 1898 that pardon should be granted
only after a person had been convicted and sentenced. As the same
language has been repeated more or less in article 72, therefore, it stands
to reason that under article 72 as well the President may grant pardon only
after a person has been convicted.

Justice Kapur in his dissent in the Nanavati case also cited several
cases of the Supreme Court of the United States and also the views
expressed by some English commentators. His view is that since full and
absolute power of granting pardon is vested in the British Crown and also
in the President of the United States as is evident from the American cases
cited by him so it should be taken for granted that the President of India
as also the governor of a state has a similar power. In support of this
view he advanced the following argument :

In India also the members of the Constituent Assembly were familiar with the
English institutions and the powers of the English Kings and the exercise of
their power both by the Governor General and the Governors of British India
and its provinces. It will be legitimate to draw on English law for guidance

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1 971] PRESIDENTIAL PO WER OF PARDON 117

in the construction of articles dealing with the power of th

the Governor in regard to pardons including the other for
comprised in the two articles. It will not be inappropriate
framers of the Indian Constitution were not only familiar
British jurisprudence but were familiar with the American
they were drafting their Constitution, in the English languag
to draw upon the American parallel would be wholly legitim

With due respect to Justice Kapur it is submitted

would have been valid if the legal provisions in r
of pardon and the constitutional system of Engla
America and India had been identical. If these pro
tances are different, then his reasoning could have force
limits. So we have to find out as to whether the legal
power of pardon is or is not identical in England, Uni
and India.

Ill

The first point to which attention may be drawn is that in England

neither today there is nor at any time in the past there was a code of
criminal procedure of the type which has been in force with amendments
in India since the last decade of the last century.17 Sir James Stephen has
expressed his regret in his A History of the Criminal Law in England that
the procedural law in respect of criminal matter has not been codified in
England and that, therefore, provisions relating to procedure are found
interspered in several special Acts and also in the common law. Moreover
in England there was no court of criminal appeal upto 1907. Consequently,
if there was any error or miscarriage or justice in connection with the
penalty imposed for an offence, then there was no alternative except to
have recourse to the mercy prerogative of the Crown. The third point
which has to be borne in mind is that in common law there is no provision
for the tender of pardon by the trial court to an accomplice in order to
make him an approver in the case against his co-accused. It is true that
in some special parliamentary statutes there are provisions for a person
being made an approver against his co-accused for the purposes of that
Act but unlike India there is no provision for a person being made an
approver under any general statutory law relating to the general procedure.
Therefore, whenever a co-accused is made an approver the procedure that
has to be followed is that the case is adjourned for a later date and the
concerned accused petitions the King to exercise him mercy prerogative
and pardon him for the offence to which the applicant has pleaded guilty.18
16. Nanavati at 13.

17. The Code of Criminal Procedure came in force in 1861. It was replaced by
the Code of 1872, and was re-enacted in 1882 then in 1898.
18. But in India there is an appropriate provision in Section 337 of the Code of
Criminal Procedure for an accompice being made an approver by tender of pardon by
magistrate of the first class. It may be made clear that the authority acting under § 33

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118 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 13 : 1

If the King grants his prayer and gives him pardon, then the same has
be pleaded in the court where his trial is taking place and thereafter,
the concerned person can be made an approver.19 Fourthly, unlike
President under Indian Constitution, the Crown in England has b
considered to be fountain of justice. The Crown can do in the domain
justice, what cannot be done by the President of India.20 Fifthly, it ha
be remembered above all that the prerogatives of the Crown In Engla
are not defined or spelt out in a written Constitution. They have
charging in their nature and continue to change according to the situa
and circumstances emerging from time to time. As against that the po
of Indian President are defind and spelt out in the written Constitutio

Lord Coke, when he compiled his Institutes, expressed the followi

opinion about the power of pardon of the Crown, He said :
A pardon is a work of mercy, whereby the King before attainder, sentence or
conviction or after foregive any crime, offence punishment, execution, right,
title, debt or duty, temporal or ecclesiastical.21

Though this was a wide power yet in certain respects it was limi
as has been set forth in Exparte in the Matter of William Wells,21 T
Court observed :

But to the power of pardoning there are limitations. The King cannot, by
any previous license, make an offence dispunishable which is malum in se
i.e., unlawful in itself as being against the law of' nature or so far against the
public good as to be indictable at common law. A grant of this kind would
be against reason and common sense and therefore, void... So he cannot
release a recognizance to keep the peace with another by name... Nor, after
suit has been brought in a popular action, can the King discharge the
informer's part of the penalty.28

In that judgement several other limitations have been enumerated

the Crowns' power of granting pardon. The correct position is that t
and 333 acts in a judicial capacity. Lord Wright in A.I.R. 1938 P.C. 226 observed
Section 337 falls under chapter 24 which deals with general provisions a
inquiries and trials. Section 494 falls under chapter 38 which is headed
the public prosecutor' that is to say, the former section deals with the ac
of a judicial , the latter with of an executive officer.
19. In support of the view that the Crown can grant pardon before convic
only one case, R. v. Boyes, [18611 I.B.P.S. 311, is referred to by Lord Halsbury
Law of England. It was one which an accomplice was, before his conviction, ten
pardon by His Majesty to enable him to tender evidence against the principal accu
From this it would be evident that the power of granting pardon before convicti
exclusively related to the procedure of approvement and may not be exercised in
cases.

20. In India the supreme authority in matters of justice is ttie s

not the President.
21. 3 Coke, Institutes 233.
22. [1856] 15 Law^Ed. 421,
23. 1 Id. at 424,

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1 971 ļ PRESIDENTIAL PO WER OF PARDON 1 1 9

British Crown could exercise the prerogative to grant pardon

in respect of which the Crown had commenced or was t
criminal proceedings. But the power of the Crown to grant
also been limited to a certain extent by some parliamentary
Chitty's words :
In short the general principles is clear that the King cannot pardon
where no interest is, either in point of fact or by implication of L
in him.24

Today the position about the extent of this power appears to be that the
Crown can grant pardon before or after conviction.
The Constitution of United States is a written one. Under in the
President of the United States has been conferred the power of grantin
pardon for "offences against the United States." One significant feature o
the American law relating to criminal procedure is that there is no provision
for making an accomplice a state witness or approver by way of pardon
being tendered to him by the court. There is no authority in the United
States of America parallel to Indian magistrates of the first class and district
magistrates. There also the position is that before an accomplice can be
made an approver a petition has to be presented to the President or to th
governor of the state concerned forp ardon being granted to that accomplice
after the lai U r has pleaded guilty to the charge . Similarlv, there is no pro-
vision in their criminal procedural law about the commutation of sentenc
It has been held by the Supreme Court that pardon may be granted
before or after conviction. But if granted before conviction, then it has t
be accepted by the accused before it can become effective. The Supreme
Court of the United States in the matter of Ex parte A.H. Garland 25
observed in follows :
If granted before conviction, it prevents any of the penalties and disabilities,
consequent upon conviction, from attaching; if granted after conviction, it
removes the penalties aad disabilities.20

It must, however, be noted that this opinion was pronounced in a case in

which the President had made a declaration of grant of pardon to those
persons of the southern states who had taken part in the rebellion against
United States and who for that pardon would have been subject to the
penalties for taking part in that rebellion. Actually, in this case a person
who had been practising as an attorney and who had sided with the
southern states would have become disqualified to practice as an attorney
on account of his inability to take an oath that he had not participated in
any rebellious activities. Such an oath was required under an Act passed
by the Congress. That person had challenged the validity of the Act of
Congress on the ground that it imposed an illegal condition for the practice
of his profession and that in any case his guilt in having participated
24. Chitty, The Law of the Prerogatives of the Crown •
25. [1873] 18 Law Ed. 3Ś6,
26. Id.* xm.

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120 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 1

in the rebellion had been washed away by the pardon granted by t

President. The Supreme Court of the United States held that the releva
congresssional Act was ultra vires. This was sufficient for the final dete
mination of the case. But the Court went on to say that as the Preside
had granted pardon so whatever guilt attached to Garland had been wash
away, and he was as if a new person free from the guilt of rebellion. O
may well say that the latter part of the judgment of the Supreme Court
the United States is not binding in as much it was not necessary for th
decision of the case after that Court had held that the congressional A
imposing the condition regarding oath was unconstitutional. In that ca
also it has to be noted that the petitioner had admitted his guilt and havi
accepted the pardon, had pleaded it in court.
Normally pardon is granted only after conviction, and in that cas
even if it is not accepted by the accused, it becomes effective for t
simple reason that it implies.
The determination by the Supreme authority that it would be in the public
interest to inflict a lesser punishment than what has been awarded to an
accused by a court of law.87

But the decision of the Supreme Court of the United States in

Exparte Garland cannot be an authority for this country because o
the difference between the language employed for conferring th
power of pardon on the President of the United States and that b
which the power of pardon has been conferred by the Constitution on
Indian President. In the United States, the potoer of pardon conferred
on the President is in respect of offences against the United States. Bu
in India the power of pardon is in respect of punishment. While t
President of the United States may exercise the power of pardon befor
conviction subject to the condition that such pardon is accepted by the
person to whom it has been granted, the same may not be done by the
President in India.

In conclusion, it may be submitted that in a democratic system

there should be no question of the feudal prerogatives of the Briti
Crown continuing in India. Even otherwise it is not considered prop
in modern times that a person accused of having committed an offenc
should be treated as a person of a special category and granted pard
so that criminal proceeding may not be initiated against him and freed
from all the infamy of the commission of an offence such a perso
should become a respectable citizen again. It would therefore, be proper
to construe article 72 and article 161 by taking the normal meaning of
the term 'punishment' and not by treating it as identical in its import
with the term 'offence'.
Balkrishana*

27. Per Holmes, J. in Biddle v. Perovich , supra note 1.

♦Member, Official Language Commission (Legislative) Law Ministry, New Delhi

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