In India, the roots of the pardoning power may also be found in the Family. With
the development of the society the law of pardon also Developed frequently and
systematically especially as a corrective Measure. One of the oldest methods of
corrective measures for the Criminals may be traced to the time when there was
no King or the head of The society. This method was known as Prayaschita or
expiation. It was being Performed by the wrongdoer himself. In fact the person
who committed a Crime or sin called pataka was used to approach God for the
Forgiveness if he felt guilty. In other words initially it was a method of self
Purification exercised by the offender himself.
With the passage of the time
the law was codified. Before the era of Codification of law the power to grant
pardon was being exercised as The basic purpose or objective remained same
Throughout the period of time. Such powers of mercy were also exercised in India
by the Mughal Emperors and rulers as well. In the early years of the East India
Company's operation, mercy in their courts remained limited to the Prerogative
powers of the British King-Emperor sentences after the Establishment of the Sadar Nizamat Adalat in 1772.
Eventually with the Merger of the mofussil and presidency systems, statutory
clemency powers Were provided for in the Indian Penal Code and the Code of
Criminal Procedure that were enacted in 1860 and 1861 respectively. During this
British period so many laws were framed wherein the law of pardon was Contained.
Even after the independent the power to grant pardon was kept alive in the
constitution of India.
Present scenario of pardoning power
Almost all the countries of the world the executive powers are Exercised in the
name of the Head of the State. These powers may be Termed as extraordinary
powers which also include the power to grant Pardon. These powers are generally
given first to distinguish their foremost Position under their respective
constitution and secondly to correct Possible judicial errors and miscarriage of
justice which may occasionally Occur in the administration of justice.
As a matter of fact “no human system Of judicial administration can ever claim
to be free from imperfections Howsoever competent and efficient it may be.
Therefore in order to avoid The miscarriage of justice the power to grant pardon
has been given by the Concerned constitution to the head of the State i.e. the
Crown in England, The Governor-General in New Zealand, the President in United
States, France, South Africa, Pakistan, Sri Lanka and to the Standing Committee
Of National People's Congress in China so on and so forth.
Constitution of India which was passed on 26 of November, 1949 and Came into
force on 26 of January 1950 also confers the power to grant pardon on the
President of India who is the head of Indian Republic. But under the
Constitution of India it is not only the President who can Exercise this power
but the Governors of the concerned States are also Empowered to exercise this
extraordinary power within their respective States.
The preamble of the Constitution of India which contains the aims And objectives
of the constitution also talks about the justice as an Important and necessary
part of the constitution. Justice, liberty and equality are the hallmarks of the
Indian Constitution. Liberty of course is the basic human right. The concept of
Liberty, coupled with the concept of justice and equality, together made the
Founding fathers of the Indian Constitution realise the paramount need to Ensure
that justice is done to all, including the protection of liberty and that While
doing justice and guaranteeing liberty, the concept of equality, Including fair
play and objective, is not lost at sight on.
Keeping in view the Basic aim and objective of the Constitution the Founding
Fathers of the Indian Constitution inserted two provisions i.e. Art 72 and Art.
161 and empowered the President and the Governor of the Concerned State to
deliver justice to a person if the punishment appears to Be harsh.
Power of the President under Article 72 of the Constitution:
The very first provision dealing with pardoning power is contained in The Art 72
of the Constitution of India. It confers the pardoning power on The President in
the following words:
Power of President to grant pardons, etc and to suspend, Remit or commute
sentences in certain cases:
- 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
- in all cases where the sentence is a sentence of death.
- 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.
- 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.
Under Article 72 of the Constitution of India President of India has Power to
issue not only the order of pardon but he can issue some other Orders as well.
Such an order can be issued by him only in certain cases As mentioned in this
This Article further provides that the power of The President shall never affect
the power of the Governor or any Officer of the Armed Forces.
Thus this Article can be divided into three Heads:
- Nature of orders that can be issued by the President.
- Extent of exercise of Power.
- Effect of Power of President on the powers of Governors and the Officers
of Armed Forces.
Nature of Orders that can be issued by the President:
By virtue of clause (1) of Article 72 of the Constitution of India the
President of India can issue the following five types of orders:
The very first order i.e. pardon
that can be issued by the President Of India
under Article 72 is the order that completely absolves the guilt of The
offender. Even the Apex Court has held that whenever a convict is Granted pardon
by the President of India under Article 72, he is completely Absolved from the
punishment imposed on him as also from all penal Consequences and such
disqualifications as disentitle him from following His occupation and as are
concomitant of the conviction.
Thus whenever a Pardon has been received by a
convict form the President of India, he Becomes free to live in society as if he
never committed any offence. Moreover the disqualification attached to the
conviction also comes to an End.
In case of the second order i.e. reprieve, can be issued by the President of
India under Article 72, simply stays the execution for a Temporary period, or
postpone a capital sentence or take back or withdraw A sentence for a time.
Generally the President can issue the order of Reprieve in all cases where a
mercy petition under Article 72 is presented Before the President for
consideration and this order of reprieve remains in Force till the final
disposal of the petition by the President.
But as a matter Of practice a
specific procedure has been laid down for the grant of Reprieve where a mercy
petition has been filed. As per this procedure the Duty not to carry out the
sentence of death has been conferred on the Jail Superintendent. But this duty
can be exercised only if a mercy petition has Been filed either by the prisoner
or his relatives.
The third order the President of India can issue under this Article is That
of respite. This order also results in temporary suspension of a Sentence in
special circumstances such as the pregnancy of a woman Sentenced with death
penalty or insanity of convict. In other words it is a Postponement of execution
of the sentence to the future. In such type of Cases the President may also
award a lesser sentence instead of the Penalty prescribed by the court.
The fourth order that can be issued by the President of India under Article 72
is that of remission. It Means the reduction of the sentence without changing
the nature or the Character of the punishment awarded by the court e.g. a
sentence of two Years rigorous imprisonment may be remitted to one year rigorous
The last order that can be issued by the President is the order of Commutation
of the sentence whereby the President may change a Punishment to one of
different sort than that originally awarded by the Court.
Thus under Article 72 President of India has power to issue not only The order
of pardon but he can also issue the orders of reprieve, respite, Remission or
commutation. Whosoever applies under Article 72 he always Wishes to receive an
order of pardon from the President.
The basic or Obvious reason behind it is
that a pardon completely relieves a person from Any kind of liability attached
with the sentence and thereafter he can live in Society without any prejudice to
his rights or in other words he can live a Normal life in the society without
any blemish of being a criminal and can Enjoy all the rights of a normal
citizen. But If a person will get anything less Than pardon such as reprieve,
respite, remission or commutation in his Favour, in that case the stigma and
blot attached to the punishment will go With him till his last breath.
Since no power can be absolute therefore this power of the President of India
under Article 72 of the Constitution, to issue orders of Pardon, reprieve,
respite, commutation, remission, is also subject to certain Restriction as well.
The area within which this power can be exercised has Specifically been
prescribed by the Constitution itself.
As per Article 72(1) The President of India has the power to grant pardons,
reprieve, respite etc.
Only in the following cases:
- Punishment or Sentence passed by Court Martial
- Punishment or Sentence passed under Union Laws
- Sentence of Death under any law
Power Of Governor Under Article 161 Of Indian Constitution
So far as the power of the Governor under the Constitution is Concerned it is
contained in Article 161 that reads as under:
The Governor of a State shall have power to grant pardons, Reprieves, respites
or remissions of punishments 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.
Just like the President of India the Governor of the State concerned Also have a
power to issue five types of orders under Article 161.
The Orders that can be passed under this Article are:
So far as these five powers are concerned they all are similar to the Powers of
the President of India. The meaning and effect of the exercise of these powers
is also the same. In other words the expressions pardon, Respite, reprieve,
remission, commutation carry the same meaning as same Under Article 72.
Although the effect of the power is the same but the area within Which the power
under Article 161 can be exercised is different. The Article 161 itself provides
that the orders of pardon, reprieve, respite etc. Can be Issued by the Governor
only In cases of violation of any law relating to a Matter to which the
executive power of the State extends. Once again here Also the question arises
that up to what extent of the executive power of the State can be exercised.
The Constitution also answers this query in the Following words: Whenever a law
is made by the State under the State or Concurrent list and if any person is
punished for the infringement thereof Such a person can file a mercy petition
under Article 161 of the Constitution of India before the Governor of the
concerned State whose Law had been violated by that person. On receiving such an
application the Governor possess the power to issue an order of pardon,
reprieve, respite, Commute or remission. But the Article 161 does not confer
upon the Governor to the power to grant pardon in case of capital punishment.
The Power to grant pardon in case of a death sentence is exercisable by the
President himself. this is true that the Constitution do not confer any power To
grant pardon etc in case of capital sentence upon the Governor but it Does not
mean that he can never exercise this power otherwise as well. The Constitution
itself says that the power of the State Governors to grant Suspension, remission
or commutation of a sentence of death conferred by Any other law shall remain,
Guidelines for the exercise of Pardoning Power:
Neither the Constitution of India nor any other statute provides for The
guidelines that shall be followed for the exercise of the constitutional Power
to grant pardon. The quest for laying down the guidelines for the Exercise of
this power finds its roots in the wider interpretation of Articles 21 and 14 of
The preamble of Constitution of India guarantees 'human dignity.' no statutory
guidelines have been Framed for the exercise of the power to grant pardon under
the Constitution Of India. Although the question of framing the guidelines came
up for Consideration before the Supreme Court so many times and it also said
That the absence of guidelines may go against the Articles 14 and 21 but Still
neither the court framed the guidelines nor it asked the government to Do so.
Revocation of Pardon:
This is quite possible that the pardon granted by the executive may Be revoked
or withdrawn. The question of revocation may come up for the Consideration of
the executive in two cases.
The very first case where the Pardon can be revoked is one when the pardon
itself is obtained by fraud, Misrepresentation or misinformation. In other words
a pardon procured by False and fraudulent representation or an intentional
suppression of the Truth is void, even though the person pardoned had no part in
perpetrating the fraud.
The second one is in case of violation of the condition Imposed by the executive
on the person seeking pardon. As a matter of Fact a pardon can either b on the
person seeking pardon. As a matter of Fact a pardon can either be free or
conditional. The fulfillment of the Condition is always necessary and the breach
of the same can always put The person behind the bars once again.
The Constitution of India not only contains the power to grant pardon But also
provides for the exercise of power to grant reprieves, respite, Remission and
commutation of a sentence. All these powers can be Exercised by the President of
India and the Governors of the concerned State. It is true that the nature
manner etc. Of this pardoning power to be Exercised by both of them is similar
but still there is no clash of power Conferred upon these two distinct bodies.
The main reason behind this is That the area or extent of this power has already
been defined specifically By the founding father of the Constitution of India.
Moreover it has also Been taken care of that the power of the President to grant
pardon shall Not come in conflict with the power of the President to grant
pardon shall Not come in conflict with the power of the officers who enjoy the
similar kind of powers under the Laws for the Armed forces.
The major loophole is That this constitutional power is required to be exercised
only on the aid And advice of the council of ministers. Moreover, the
Constitution does not Provide for any specific procedure and guidelines to be
followed for Presentation and disposal of the mercy petitions, thereby
increasing the Possibility of misuse of the power. Therefore the ruling party
can easily Misuse or abuse this precious power.