POWER TO PARDON: AN ANALYSIS

In common parlance, to pardon means to forgive a person of his offence. The term 'pardon' has
been defined as an act of grace, proceeding from the power entrusted with the execution of the
law, which exempts the individual on whom it is bestowed upon, from the punishment the law
inflicts for a crime he has committed. It affects both the punishment prescribed for the offence
and the guilt of the offender. [2]

In other words, grant of pardon wipes off the guilt of accused and brings him to the original
position of innocence as if he had never committed the offence for which he was charged. Under
Indian law, the President of India and the Governors of States have been given the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence. The law governing grant of pardon is contained in Articles 72 and 161 of the
Constitution.

Granting of pardon may be of two kinds.

Absolute -
Absolute pardon may blot out the guilt itself. It does not amount to an acquittal unless the Court
otherwise directs. The accused is released permanently without requiring any condition to be
fulfilled.

Conditional:-
Under this pardon, the offender is let off subject to certain conditions. The breach of these
conditions will lead to revival of his sentence and he shall be subjected to the unexhausted
portion of his punishment.

Jurisprudence of Granting pardon:-

The philosophy underlying the pardon power is that that “every civilized country recognizes and
has, therefore provided for the pardoning power to be exercised as an act of grace and humanity
in proper cases, without such a power of clemency to be exercised by some department or
functionary of government, a country would be most imperfect and deficient in its political
morality and in that attribute of deity whose judgments are always tampered with mercy." [3]

The pardoning power is founded on consideration of public good and is to be exercised on the
ground of public welfare, which is the legitimate object of all punishments, will be as well
promoted by a suspension as by an execution of the sentences.

Purpose of Granting Pardon :-

Pardon may substantially help in saving an innocent person from being punished due to
miscarriage of justice or in cases of doubtful conviction.

The hope of being pardoned itself serves as an incentive for the convict to behave himself in the
prison institution and thus, helps considerably in solving the issue of prison discipline.

It is always preferable to grant liberty to a guilty offender rather than sentencing an innocent
person.

The object of pardoning power is to correct possible judicial errors, for no human system of
judicial administration can be free from imperfections. [4]

Power of pardoning in various countries :-

The modern practice of pardoning find its origin in the British system in which it was a Royal
Prerogative of the King to forgive. It also finds mention in the code of Hammurabi, a series of
edicts that were developed in Babylon nearly 4,000 years ago. During the medieval period,
pardon was extensively used as a method of reducing overcrowding in prisons during war,
political revolt etc. In modern democratic countries, the power to grant pardon or clemency is
vested in their executive heads.

USA -
The American Constitution gives the President the power to grant reprieves or pardons for
offences against the USA, except in case of impeachment. However, this power is available only
in case of violation of Federal law and pardon in the case of violation of a State law has to come
from the Governor of the State concerned.

UK -
In UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial
advice.

Canada -
In Canada, pardons are considered by the National Parole Board under the Criminal Records
Act. [5]

India -
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.

Constitutional Provisions:-
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
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 a
matter to which the executive power of the Union extends;

(c) 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 Article deals with the power of the 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. Thus, this Article empowers the Governors of States to
grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the
sentence of a person convicted of an offence against a law relating to a matter to which the
executive powers of the State extends.

Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue
for a long time. Those who reject pardon as an effective measure of mitigating circumstances
argue that the power to pardon is often misused by the executive. There is a possibility that the
convict may procure his release from prison by exerting undue influence on the executive
authority. To avoid these flaws, in most of the countries, there is a provision for judicial review
of the pardon granted in the event of grounds for pardon being found unsatisfactory.

Pardoning power under Judicial Review :

There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law
relating to judicial review of pardoning power.8
In Maru Ram v Union of India [6] , the Constitutional Bench of Supreme Court held that the
power under Article 72 is to be exercised on the advice of the Central Government and not by the
President on his own, and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal [7] , the Supreme Court reiterated
its earlier stand in Maru Ram’s case and said:

“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and
State Governments, not by the President or Governor on their own. The advice of the appropriate
Government binds the Head of the state."

The Supreme Court in Ranga Billa case [8] was once again called upon to decide the nature and
ambit of the pardoning power of the President of India under Article 72 of the Constitution. In
this case, death sentence of one of the appellants was confirmed by the Supreme Court. His
mercy petition was also rejected by the President. Then, the appellant filed a writ petition in the
Supreme Court challenging the discretion of the President to grant pardon on the ground that no
reasons were given for rejection of his mercy petition. The court dismissed the petition and
observed that the term “pardon" itself signifies that it is entirely a discretionary remedy and grant
or rejection of it need not to be reasoned.

Supreme Court once again in Kehar Singh v Union of India [9] reiterated its earlier stand and
held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed
as a matter of right. The power exercisable by the President being exclusively of administrative
nature, is not justiciable.

In Swaran Singh v State of U.P. [10] , the Governor of U.P. had granted remission of life
sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence
of murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has
no power to touch the order passed by the Governor under Article 161, but if such power has
been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of
constitutionalism", such order cannot get approval of law and in such cases, “the judicial hand
must be stretched to it." The Court held the order of Governor arbitrary and, hence, needed to be
interdicted.

In the early case of K.M. Nanavati v State of Bombay [11] , Governor granted reprieve under
Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings
under Article 145.

In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [12] , 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:

The order has been passed without application of mind.

The order is mala fide.

The order has been passed on extraneous or wholly irrelevant considerations.

Relevant material has been kept out of consideration.

The order suffers from arbitrariness.

Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial
review.

Process of granting pardon in India :

The process starts with filing a mercy petition with the President under Article 72 of the
Constitution. Such petition is then sent to the Ministry of Home Affairs in the Central
Government for consideration. The abovementioned petition is discussed by the Home Ministry
in consultation with the concerned State Government. After the consultation, recommendations
are made by the Home Minister and then, the petition is sent back to the President.

Difference between pardoning powers of President and

Governor :
The scope of the pardoning power of the President under Article 72 is wider than the pardoning
power of the Governor under Article 161. The power differs in the following two ways:

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.

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.

Pending cases of Pardon before the President of India :

It may be stated that as of July 2010, 21 mercy petitions involving 48 convicts' mercy petitions
are pending before the President. [13] They include petitions filed by two accused in the former
Prime Minister Rajiv Gandhi assassination case and a petition from 71-year old Shobhit Chamar
who had killed an upper caste adversary in Bihar. Besides these, three mercy-appeals and
petitions for pardon from four accused persons belonging to Veerappan’s gang for killing 21
policemen in 1993 and four Punjab terrorists accused of killing 17 people attending a wedding
near Amritsar in 1991 and the mercy appeal of Sushil Maru accused of killing a five-year old girl
in 1995 and three Dalits from Bihar convicted for massacring members of an upper caste
organization are pending for disposal before the President.

Dhananjoy Chatterjee who was sentenced to death for the offence of rape and murder in 1990
and who had filed mercy petition to Governor of West Bengal was hanged after a long period of
fourteen years when his clemency plea was finally rejected by President of India due to the delay
in exercising of the pardoning power.

The mercy petition of Afzal Guru who had attacked Indian Parliament in 2001 and who was
sentenced to death in 2004 is still pending since its filing in 2006. In June, 2010, the Ministry of
Home Affairs has made recommendation to the President's office for rejection of the mercy
petition. Due to the lethargy of executive coupled with political interest, his clemency plea has
not been considered yet.

Conclusion :
The pardoning power of Executive is very significant as it corrects the errors of judiciary. It
eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The
process of granting pardon is simpler but because of the lethargy of the government and political
considerations, disposal of mercy petitions is delayed. Therefore, there is an urgent need to make
amendment in law of pardoning to make sure that clemency petitions are disposed quickly. There
should be a fixed time limit for deciding on clemency pleas.

Regarding the judicial review debate, pardoning power should not be absolute as well as
Judiciary should not interfere too much in exercise of this power. 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.