I am granting your application because you have demonstrated the potential to
turn your life around. Now it is up to you to make the most of this opportunity.
It will not be easy, and you will come across many who doubt people with
criminal records can change.
Judges discharge justice according to the best of their knowledge and administer
the laws, whatever the laws may be. Nevertheless, they are not infallible.
Judicial methods are, at times, not adequate to secure justice. Also, the
offenders, once convicted, are known to display remorse and a desire to improve.
While there is no guarantee that if released, those offenders will not again
transgress the laws, there is an element of trust here, which is the foundation
stone of civilised living.
The need for pardoning power was acknowledged by the Indian Courts in the case
of Kehar Singh v. Union of India
, wherein it was observed that human judgement, even though it may be by a supremely trained mind, can be egregious
and, therefore, power is entrusted in an even higher authority to examine the
threatened denial to life and personal liberty.
With the COVID-19 outbreak, a fear of its spread in the overcrowded prisons had
increased. At present, as many as 466084 convicts in the country occupied just
1339 jails. Restricted and congested places are an identifiable hotbed of
communicable diseases and thus, the jails in India are/were a magnet for the
uncontrollable spread of this virus. The World Health Organisation has strictly
suggested social distancing and isolation as the most effective way to thrive
during these times.
As a measure, orders were given to the Government of India by the Supreme Court
to release the undertrial prisoners, who were sentenced for a period of 7 years
or less. Thus, our justice system is bestowed upon with the crucial role of
handling the health of the masses vis a vis the security of the state which may
be put to threat by the release of such prisoners.
Though, startlingly no mention was made to use the inbuilt mechanism, already
provided for by our Constitution, as a tool to resolve this problem- the power
Pardoning power- a tried and tested formulae- could have also helped in
lightning the pressure of prisons and it would have been a more reliable method
than just randomly releasing the convicts and threatening the safety of the
Unreasonable delay in the execution of mercy petitions, and ambiguity in the
components based on which remission is offered- -are some crucial areas which
were once again highlighted in the light of this ongoing pandemic.
An attempt has been, thus, made through this paper to examine the status of
prisoners right in this pandemic and the effectiveness of the power to pardon to
deal with this gruesome condition of the prisons at hand.
Evolution of Pardoning Power
Many possible analogies can be drawn with the ancient practices of pardoning
accused individuals; though the concept of pardon as contained in the Indian
Constitution can most realistically be said to be derived from the British
tradition of granting mercy.
During the British rule, the power of pardon was vested with the monarch who was
free from any judicial review. From here, it found a place in the Constitution
of India. It was first inscribed in Section 295 of the Government of India Act,
1935 and then subsequently Article 72/161 of the Constitution of India, 1950
entitled it with the President of India/Governor of the State respectively.
The President is nothing but a functional euphemism. He/she is bound by the aid
and advice of the Council of Ministers and cannot act on his/her discretion in
matters relating to pardoning power. He is empowered to grant pardons,
reprieves, respites, or to suspend or commute or remit the sentence of any
person convicted of any offence. An analogous power is given to the Governor of
any state under Article 161. In addition to this, Section 432, 433, 433A,
434, 435 of CrPC and 54,55 of IPC entitles the government to curtail the
sentence of life imprisonment or capital punishment as provided therein.
Section 432 & 433 CrPC are not a manifestation of Article 72/161. They are to be
treated like a similar source of power which cannot override or abrogate the
constitutional power to pardon, commute, remission and the like.
While dealing with the mercy petitions of the assassins of the Indira Gandhi
case, the Supreme Court held that Article 72 falls squarely within the
judicial review. However, the order of the President cannot be subject to
judicial review except when it falls within the limitations as laid down in the
Maru Ram case.
According to this case, pardoning power can be subjected to review when an
executive decision has been made on wholly arbitrary, irrational, unreasonable
and malafide grounds such as discrimination based on caste, creed, religion or
political loyalty. However, the Supreme Court has wisely refrained from laying
down any explicit guidelines for the exercise of this power.
Fundamental rights vis -a- vis pardoning power
It is important to note that Article 14 prevents arbitrary discretion from being
vested in the executive. The Apex court in State of West Bengal v. Anwar Ali
, had held a law to be invalid on the ground that the use of vague
expressions, like Speedier Trial
, conferred a wide discretion on the
government, which can be a basis of unreasonable classification. Inordinate
delay in executing mercy petitions is also inhumane and barbarous. We are
shameful for having too many undertrial detainees in our prisons because of an
overburdened judicial apparatus and a languid pace of trials.
After 11 years passed, the mercy pleas of the death convicts Murugan, Santhan &
Peraivalan in Prime Minister Rajiv Gandhi's assassination case, were rejected by
the then President of India. Locking away a person for long years and
ultimately condemning him/her to death after a massive delay on the government's
part is not in keeping with the ideals of a truly modern society.
This is not the only case. The number of mercy petitions disposed of too has
decreased drastically from 94% in between 1948-74 to 6.2% in 1974-2017. The
government seems to be apathetic to the plight of such convicts who are kept in
suspense for many years. Courts in all civilised states, including India's
Supreme Court, have recognised that any prolonged delay in executing a death
sentence can make the punishment when it comes, more degrading and inhuman. It
is evident that the lack of procedure in dealing with mercy petitions stands in
contravention to principles enshrined under Article 21.
The Apex Court in 1983 thereafter held that the executive authorities should
follow a self-imposed rule that every such petition should be disposed of within
a three months period from the date it is received. In other cases, the Supreme
Court then commuted the sentence of death to life imprisonment because of the
unconscionable delay and suspense entailed for the convict.
On September 18, 2009, the Supreme Court had to again explicitly remind the
government of its obligations, concerning the 26 mercy petitions that were then
pending with the President. On July 16, 2020, a Bench of Justice S.A. Bobde,
Justice R. Subhash Reddy, & Justice A.S. Bopanna sought response from the Center
on the untimely disposal of mercy petitions.
It is a fallacious to think that the pardoning power given to the President and
the Governor under the Constitution of India is an act of grace or
The power endowed on the President and the Governor is a part of
India's constitutional scheme and is an intrinsic part of the criminal justice
system. The convict has a constitutional right to have his/her petition
considered by the President or the Governor on relevant grounds, including
miscarriage of justice.
Prisoners & The Pandemic
At this time of the pandemic, the condition of jails, prisons, and immigration
detention centres is highly concerning. Discussions are taking place to provide
every available legal mechanism to secure the release of prisoners and detainees
who pose little or no threat to public safety and whose health and safety are
themselves severely endangered by their enforced captivity.
Indian prisons are today working at one hundred and fifteen percent of their
capacity. The unsanitary and overcrowded conditions mean that the prisoners
are at a high risk of contracting Covid-19. The impact of the virus and the grim
circumstances in the prison has inevitably affected the prisoners' mental and
Recently as per the orders of the Supreme Court, over thousands of under-trial
convicts have been released on bail to curb the spread of Covid-19. Many
people have questioned how the interim bail and the release schemes have been
More than 100 prisoners of central jail in Rajasthan were tested positive for
COVID-19. The High Court of Rajasthan soon came into action when a division
bench at the court, took suo-motu cognizance of the matter for the inmates being
tested positive on around May 17th, gave instructions to control the spread of
virus in prisons.
Nevertheless, the release of under-trial prisoners was at the peak during this
season. Many undertrial prisoners have already completed more than half of their
sentence, even before the proceedings could be initiated against them. A
committee comprising three members (made on the directions of Justice Madan
Lokur) issued guidelines to release such under-trial prisoners and other such
prisoners if they are elderly, infirm, or require medical care. This
committee was instructed to review these guidelines frequently. The
effectiveness of the orders cannot be interpreted as of now.
The coronavirus situation, thus, has once more raised the alarm on the topic of
How is the right to life and health insured for the
The Supreme Court has been taking up such cases suo moto in the last few days.
In one of the recent cases, it was said that there should be distancing within
the prisons accompanied by regular health check-ups and necessary quarantining
measures. The recommendation for setting up a high-powered committee in each
state in addition to the already present undertrials committee was given. This
high-powered committee would include a high court judge, head of the legal
services committee, and the Director General of the prison. The purpose behind
forming this high- powered committee was to ensure the prisoners' release in a
In lieu of this, many prisoners have been released. Maharashtra freed ten to
fifteen thousand prisoners on bail and parole. Kerala has also released up to a
thousand prisoners. Still, we see that the persons convicted under the Unlawful
Activities (Prevention) Act, 1967 or other offences against the state are kept
in prisons even if they are aged, elderly or highly susceptible of catching
How to respond constitutionally at this time is very disputable. Whether to
respect the prisoners' right to health and life, which is at high risk
during the COVID-19, or to let the extremely severe charges slapped upon the
offenders, hold ground?
Besides, the interim bail and early release demand increasing, pressure is
created on the government to effectively use the tool of pardoning power; an
already inbuilt mechanism in our Constitution that can be optimally utilised to
control the situation at hand. Timely disposal of mercy petitions is a solution
that can help the criminal justice system thrive during this pandemic.
Lack of intelligible differentia while exercising pardoning power is
inconsistent with the international standards also, along with Article 21 & 14
of the Constitution of India, 1950.
Countries around the world are facing similar issues. Therefore, it's essential
to understand the world scenario to get a global perspective and take
suggestions if possible.
Article 12 of the International Economic, Social and Cultural Rights Covenant
specifies that a state shall "respect and protect the right of everyone,
including those who are imprisoned, to enjoy the highest attainable standard of
physical and mental health."
There are some other international laws that indicate the importance of
prisoner's rights. One of them is the UN Standard Minimum Rule for the Treatment
of Prisoners. The rule proposes that the convicts and undertrial prisoners must
be released to protect their right to life in this current health crisis.
International Covenant on Civil and Political Rights, is another important
legislation which protects the human rights of individuals or prisoners in this
current scenario. Article 6 of the regulation talks about the right to life
of all human beings, and this right continues to apply in all circumstances,
including the emergencies and armed conflicts. Article 7 of the
regulation establishes equality before law, equal protection of laws. It
states that no one shall be subjected to torture or degrading treatment or
punishment or inhuman treatment.
The prisons in Pakistan have many issues which are similar in nature to those of
Indian prisons. Congested operating places, poor sanitation and ventilation
facilities are some of them. Amidst the pandemic, such an unhygienic and
congested environment can lead to the spread of the virus at a significantly
high rate, which thus hinders the rights of the prisoners to have a healthy
To curb those issues the Pakistan Policy makers have tried to work on the
Probation & Parole Policy
. The Supreme Court of Pakistan has directed all
district court judges to inspect the prisons and free all those who are falling
within the category of the 'Probation & Parole policy'. They have also asked the
prison officials to keep a check upon those prisoners, who fell in the 'prohibitory clause' as per which the inmates who are highly dangerous to the
society, are to be kept quarantined in a designated and segregated
They ordered the grant of bail to under-trial prisoners, specifically
suspending the sentence of those who were punished for 5 years or less. There
are some of the initial decisions taken by the administration of Pakistan to
curb the spread of the virus.
Additionally, The Governor has the power under Section 401 Code of Criminal
Procedure of Pakistan to suspend or commute the execution of sentence or to
remit the whole or part of sentence of a prisoner. Under Article 45 of the
Constitution, the President of Pakistan has the power to grant unconditional
pardon for any offence.
Similarly, the United Kingdom's Government has released guidelines for the
prison officials which says any prisoner or detainee with a new, continuous
cough or a high temperature should be placed in protective isolation for 7
days. In Manchester, they have already started releasing low-risk offenders
on short sentences to reduce the risk of Covid-19 on the prison population.
Also, on 21st March 2020 Justice Secretary David Gauke passed an order for
suspending short sentences and early releases of some prisoners.
In the United States, the jail officials across the country are trying to
prevent the outbreak of the virus, in the nation where there are 6000 prisons to
handle by administration. Between March 22 and March 26, twenty-three inmates
had escaped and at least one inmate was tested positive for COVID-19 in each
On the other hand, some countries are suffering violence, loss and damage too
due to the outrageous actions of the prisoners. These acts have been
contemplated as a revolt against their right to health in the time of COVID-19.
In Italy, there were riots in 27 prisons with six inmates reportedly killed and
the prison staffs were taken in hostage by prisoners.
Rationality Behind Granting Pardon
There are many theories explaining the rationale behind granting pardon to
offenders. The Hegelian view suggests that pardons are legitimised only when
they are justice-enhancing
, i.e., in certain cases justice may not be served
except with the grant of pardon, due to the unduly harsh nature of the sentence
or the individual being sentenced wrongly. This view is similar to the theory
The retributivist school of thought believes that pardon is
justified only when an extrajudicial corrective measure is required to remedy
the failure of the system. Thus, the ultimate aim of both is justice
The rehabilitation & redemption view, in contrast to the retributivist school
believes that pardon may be justified even when the goal is justice-neutral,
that is, it is not necessarily concerned with the aim of achieving justice. It
gives more importance to reformation, post- conviction achievements of the
offender, which is not at all relevant as per the retributivists view. The
redemptive view supports pardon on the grounds of public welfare and compassion.
The modern practice of granting pardon reflects a combination of both the
afore-mentioned principles, since pardon may be granted as both justice-neutral
and justice-enhancing measures.
Thus, when we have such reliable, well-conditioned constitutional provisions
present already, which can efficaciously help in executing the purpose of
reducing the prison population in the pandemic, then why not use it?
Pardoning Power not just betters the public welfare but is also a more secure
and dependable rule of law than the random releasing of prisoners who have been
sentenced for 7 years or less in the pandemic.
The Way Forward
The ultimate aim should be to discharge cases of pardon and to release
undertrials in an expeditious manner. This is because if the outbreak happens in
the jails it would put an extra burden on the health care services.
power is an A list of recommendations is suggested over here (including the ones
laid down by WHO) which can be implemented in India, to control the situation at
· Develop protocols for social distancing, environmental cleaning,
disinfection, and restriction of movement.
- Mental health is an important factor to be kept in mind while isolating
the prisoner or else isolation can have ill mental health effects.
- Prisoners who have completed their sentences and show no sign of
diseases should be left at earliest.
- Food quality should be given due attention in order to develop a strong
- Trained staff to be deployed to clean the premises and sanitise the
washrooms as washrooms in Indian prisons are used by humungous people and can be
a breeding ground for catching virus.
- Preferential visits should only be allowed in the jail premises.
- Doctors must be appointed to reduce the number of visits of prisoners
from jails to hospitals.
But there are a series of questions that should crop up in our mind when we ask
for a swift pardon process or for quick release process of under trials. A speedy
procedure of granting pardon is proportional to an increase in the number of
offenders out on the streets. Are we ready to help these people?
How can it be
said that they have improved while being imprisoned and are not a potential
danger to the society when most of the prisons don't even have psychologists to
review their mental and emotional balance? How much are we the general public sensitised towards the rights of other persons? How much is the virtue of
acceptability taught to the students in their schools?
In practicality, we are way behind 'in thought and in process' to establish a
society which can treat released offenders with respect and dignity. As a part
of this society, it is our duty first, as an individual, that we must learn to
be more humane, compassionate, and considerate towards everyone whilst passing
on these values to the younger generations too.
The case for pardoning power lingers creating apprehensions for both the
offenders and the victims. It may happen that due to the prolonged delay in
hearing a mercy petition, the offender takes advantage of the situation and gets
remitted on the ground of unreasonable delay alone, irrespective of the
injustice done to the victims or their families. Incredulity in the system is
indicated by this.
The suggested changes would eliminate the possibility of miscarriage of justice,
ensuring timely disposal of petitions relieving both the victims and the accused
of the apprehensions of the future.
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- Aarchie Chaturvedi - 2nd Year NUSRL, Ranchi &
- Vikarn Kumar Verma - 2nd Year NUSRL, Ranchi