This article has been written by Ms. Vaaghdevi, a student studying B.A.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam. The author is a 1st-year law student.
Introduction:
A pardon is an act of clemency, mercy, and forgiveness. The accused’s age, his spotless background, the circumstances surrounding the crime, the amount of years he has spent in jail while awaiting trial, and his current physical condition are just a few of the factors that could affect the outcome of the case which Executive Head may take into account when deciding whether to grant a pardon, which may be conditional or unconditional.
Pardoning powers are one of the extraordinary powers vested with the head of the state. These are mainly granted due to following reasons. They are
- To distinguish the foremost Position of head of the state under their respective constitution
- To fix Potential judicial mistakes and injustices that may sporadically occur in the administration of justice.
In reality, no human system of judicial administration, regardless of how capable and effective it may be, can ever claim to be perfect. Therefore, the concerned constitution has granted the head of the State, which in England is the Crown, the authority to grant pardons, in order to prevent the miscarriage of justice. India has a similar position. However, in India, in addition to the President, who serves as the head of state, the Governor of each respective state also has the authority to pardon.
Constitutional provisions:
The following provisions grant the President and Governor of state the ability to pardon:
Article 72:
The Indian Constitution’s Article 72 contains the first clause addressing the pardoning Power of President to grant pardons, etc and to suspend, Remit or commute sentences in certain cases:
1.The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence:
- In all cases where the punishment or sentence is by a Court Martial;
- 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;
- 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 the clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a state under any law for the time being in force.
According to Article 72, clause 1, of the Indian Constitution, the President of India may issue the following five different kinds of orders:
1. Pardon
2.Reprieve,
3.Respite
4.Remission
5.Commutation
1. Pardon:
Pardon totally absolves the offender of all culpability. Even the Supreme Court has ruled that anytime a person receives a pardon from the President of India under Article 72, he is entirely freed from the sentence he received as well as from all criminal consequences and any disqualifications that come along with the conviction.
As a result, once a criminal receives a pardon from the President of India, he is granted freedom to live his life as though he had never committed an offence. Moreover, the disqualification associated with the conviction also expires
2.Reprieve:
This only delays the execution for a little time, postpones the execution of a death sentence, or reverses or withdraws a sentence for a brief length of time. Typically, when a plea for mercy under Article 72 is submitted to the President for consideration, the President may issue an order of reprieve, which stays in effect until the President makes a final decision on the petition.
3.Respite:
It is a future postponement of the sentence’s execution. In cases of this nature, the President may also impose a lighter sentence in place of the punishment imposed by the court.
4.Remission:
It refers to the lowering of the sentence without altering the kind or character of the penalty imposed by the court.
5.Commutation:
A punishment that the Court originally handed down may be changed by the President to one of a different kind.
The Indian Constitution’s Article 72(1) describes the kind of orders the President may issue as well as the scope of his or her authority.
The power of pardon under Article 72 was reviewed in the two landmark cases of Maru Ram vs Union of India and Kehar Singh vs Union of India
Maru Ram vs Union of India:
It was brought to contest the validity of Section 433A of the Code of Criminal Procedure, 1973, which mandated fourteen years of real incarceration for two categories of criminals. In this regard, the petitioners argued that Section 433A was ineffectual because it interfered with the performance of Section 433(a), which serves as “legislative surrogates” of the Constitution’s pardoning authority. Although the constitutional and legislative powers regarding pardons are similar and coextensive, the Court stated in its landmark opinion by Krishna Iyer J. that they are not the same.
He stated that all public authority, including constitutional power, should not be used in an arbitrary or dishonest manner and that, typically, rules for fair and equitable execution are the best assurances of the legal play of power. As it will “exclude the vice of discrimination such as may arise when two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other is refused, for such irrelevant reasons as religion, caste, colour, or political loyalty,” the Court suggested for the first time in this case that guidelines be established for the purpose of exercising the pardoning power by the President.
Kehar Singh vs Union of India:
Singh was found guilty of murdering Smt. Indira Gandhi, the country’s then-prime minister, in accordance with Sections 120B and 302 of the Indian Criminal Code, and he was given the death penalty as punishment. He then sent a petition to the President requesting the use of his Article 72 powers. “The President is of the opinion that he cannot get into the merits of a matter that has been conclusively resolved by the Supreme Court of the Country,” the President said in response to the argument.
The Supreme Court while reviewing the petitioner’s claim concluded:
We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from the recorded by the Court in regard to the guilt of, and sentence imposed on, the accused. …The President acts in a wholly different plane from that in which the Court acted.
Thus, it can be seen that Kehar Singh’s case reaffirmed Maru Ram’s judgment on the subject of judicial review of the President’s pardoning power.
Article 161:
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.”
According to Article 161, the Governor of the State in question has the same authority to issue five different sorts of orders as the President of India. The Governor does not have the authority to pardon someone who has received the death penalty under Article 161. The President is the only person who has the authority to commute a death sentence.
Conclusion:
The Indian Constitution explicitly and implicitly grants the President a limited and controlled pardoning power. As a result, the authority cannot be used until the accused has been found guilty. It can’t be used to excuse behaviours in violation of the law. It does not erase the offender’s guilt or the reality of their conviction. Moreover, the authority cannot be interpreted to encompass the authority to enact a general amnesty. Nonetheless, within the narrow scope of this authority, the President should be given the greatest discretion in deciding whether to pardon or not, and judicial scrutiny should be restricted to blatant instances of mala fide, lack of application of mind, and the like. A judgement like that just serves to affirm the concepts of the separation of powers. This result just serves to reaffirm the Constitution’s supremacy over other laws and the separation of powers, which are the foundations upon which the power is first claimed to be constrained.
References:
1.1981(1) SCC 107.
2.1989 (1) SCC 204.
3. Kumar, Abhimanyu, Pardoning Power Under Indian Constitution (June 29, 2009). Available at SSRN: https://ssrn.com/abstract=1427237 or http://dx.doi.org/10.2139/ssrn.1427237
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