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The President Of India's Power To Pardon Is Not An Anachronism

"Judges must enforce the laws, whatever they be, and decide according to the best of their lights; but the laws, are not always just, and the lights are not always luminous."
-- Justice V.R. Krishna Iyer

As per the Merriam Webster dictionary, the word Pardon means to excuse or to forgive for a fault. Pardoning or showing mercy or leniency can be seen as an act of grace or humanity, to show belief in morality, but it can also be seen as a Constitutional scheme determining ultimate authority that the public welfare will be assured by inflicting less pain.

The pardoning power is an indispensable element of even the most perfect system of laws. The pardon is the instrument of mercy and the way to correct those grave injustices either on their facts or by unanticipated operation of the criminal laws that simply must be remedied.

Pardon is an act of grace from the governing power that mitigates the punishment demanded by the law for the offence and restores the rights and privileges lost on account of the offense. It is also an act of Justice, supported by a public policy. It is granted by a Head of the State, such as a Monarch or President, or by a competent Church authority. It affects both the punishment prescribed for the offence and the guilt of the offender.

The power of pardon remains unbridled with wide discretion provided to the executive. Moreover, from times immemorial the power of pardon has not so much been an act of grace as a tool of monetary and political aggrandizement. From the outset, the pardon was abused for personal gain.

Jurisprudence behind Pardon

The jurisprudence behind Pardoning is that it would create a sense of guilt. The underlying philosophy in the "Pardon" is "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."

The Pardon exercised, acts as an act of mercy and humanity to show existence of morality. It reflects a two-fold purpose – to prevent any judicial errors to happen and to provide relief from a sentence that is considered to be harsh. The power to Pardon helps create sense of belief in the public to be able to depend on the system, the only the legitimate conclusions will be taken out. The main aim of the power is to work for the welfare of the public. The power allows one to be removed from the title of accused to that of an innocent, hoping to create a sense of responsibility and provide protection.

Constitutional Provisions regarding grant of pardon, remissions, suspension of sentence

  1. The relevant constitutional provisions regarding the grant of pardon, remissions, suspension of sentence, etc. by the President of India & the Governor of a State are as follows:
    Article 72. 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:
      1. in all cases where the punishment or sentence is by a Court Martial;
      2. 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;
      3. 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 a sentence of death exercisable by the Governor of a State under any law for the time being in force.

    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 provision corresponding to Article 72 in the Government of India Act, 1935 was Section 295 which read as follows:

    1. Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission of 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 outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the Province. Provided that nothing in this sub-section affects any powers 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 of the Governor-General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.


    There was no provision in the Government of India Act 1935 corresponding to Article 161 of the Constitution.

    The above constitutional provisions were debated in the Constituent Assembly on 29th December, 1948 and 17th September, 1949 [see Constituent Assembly Debates, Vol. VII, Pages 1118-1120 & Vol. X, Page 389]. The grounds and principles on which these powers should be exercised were not discussed nor debated [see Framing of India's Constitution : A Study, 2nd Edition, Dr. Subhash C Kashyap, Page D 367-371, Page 397-399].

    Textual Interpretation Of The Constitution of India

    Article 74 (1) of the Constitution states that the Council of Ministers headed by the Prime Minister would aid and advise the President, "who shall, in the exercise of his functions, act in accordance with such advice". Similarly, Article 163 (1) of the Constitution states that the Council of Ministers headed by the Chief Minister would aid and advise the Governor in the exercise of his functions.

    However, Article 163 (1) differs from Article 74 (1) in one important respect, since the former half of the provision is qualified by the latter, which states: "except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion".

    Further, Article 163 (2) provides that if a question arises as to whether a certain matter requires the Governor to act in his discretion, the decision of the Governor in his discretion would be final and the validity of such decision cannot be called in to question on the ground that he should not have acted in his discretion on the matter.

    The prevalent view appears to be that the Governor is expected to play a more activist role than the President, particularly since in the era of coalition Governments, Governors must act as the link between Centre and the States, and for maintaining an effective constitutional machinery within the States.

    However, there is a need to distinguish between functions that may be performed using a certain degree of discretion, for the purpose of maintaining an effective constitutional machinery within States, and a power in the nature of the power to pardon, which is intended to give a much broader degree of discretion to the President and the Governors. Articles 72 & 161 expressly use the term power, and maintain a staunch silence regarding the guidelines on the basis of which such power is to be exercised.

    The use of terms such as mercy, clemency and grace in relation to this power indicate that it is intended to be in the nature of a prerogative, entirely based on the subjective satisfaction of the President and Governors. An inference that the President and the Governor would not be bound by the advice of the Council of Ministers while exercising the power to pardon does not seem unjustified, on a bare reading of the text of the Constitution of India.
     

  2. In addition to the above constitutional provisions the Criminal Procedure Code, 1973 provides for power to suspend or remit sentences – Section 432 and the power to commute sentence [see Section 433].

    Section 433-A lays down restrictions on provisions of remission or commutation in certain cases mentioned therein. Section 434 confers concurrent power on the Central Government in case of death sentence.

    Section 435 provides that the power of the State Government to remit or commute a sentence where the sentence is in respect of certain offences specified therein will be exercised by the State Government only after consultation with the Central Government.

    Sections 54 & 55 of the Indian Panel Code, confer power on the appropriate Government to commute sentence of death or sentence of imprisonment for life as provided therein.
     
  3. The philosophy underlying the pardon power is 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 a Government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose Judgments are always tempered with mercy." [see 59 American Jurisprudence 2nd, Page 5].

    The rationale of the pardon power has been felicitously enunciated by the celebrated Judgment of Justice Holmes of the United States Supreme Court in the case of ["Biddle Vs Perovich", 274 U.S. 480] in these words [71 L. Ed. 1161 at 1163]:

    "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed" [emphasis added].

    In the case of [Kehar Singh & Anr. Vs Union of India & Anr 1989 (1) SCC 204] these observations of Justice Holmes have been approved [see at 211].

    The classic exposition of the law relating to pardon is to be found in Ex parte Philip Grossman where Chief Justice Taft stated:

    "Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments." [69 L. Ed. 527]

    The dicta in Ex parte Philip Grossman were approved and adopted by the Apex Court in [Kuljit Singh Vs Lt. Governor of Delhi & Ors, 1982 (1) SCC 417"]. In actual practice, a sentence has been remitted in the exercise of this power on the discovery of a mistake committed by the High Court in disposing of a criminal appeal. see [Nar Singh & Anr. Vs State of Uttar Pradesh, AIR 1954 SC 457].
     
  4. From the foregoing it emerges that power of pardon, remission can be exercised upon discovery of an evident mistake in the Judgment or undue harshness in the punishment imposed.
     
  5. However the legal effect of a pardon is wholly different from a Judicial supersession of the original sentence. In Kehar Singh's case Hon'ble Supreme Court observed that in exercising the power under Article 72 "The President does not amend or modify or supersede the judicial record. … And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him" [see Kehar Singh, supra at 213]. The President "acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it".

    This ostensible incongruity is explained by Sutherland J. in United States v. Benz [75 L. Ed. 354] in these words:
    The Judicial power and the executive power over sentences are readily distinguishable. To render Judgment is a Judicial function. To carry the Judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the Judgment, but does not alter it qua a Judgment [emphasis added] [see page 358].

    According to the Report of the U. K. Royal Commission pardon can be granted where the Home Secretary feels that despite the verdict of the Jury there is a "scintilla of doubt" about the prisoner's guilt.
     
  6. Judicial decisions, legal text books, Reports of Law Commission, academic writings and statements of administrators and people in public life reveal that the following considerations have been regarded as relevant and legitimate for the exercise of the power of pardon.

    Some of the illustrative considerations are:
    1. interest of society and the convict;
    2. the period of imprisonment undergone and the remaining period;
    3. seriousness and relative recentness of the offence
    4. the age of the prisoner and the reasonable expectation of his longevity;
    5. the health of the prisoner especially any serious illness from which he may be suffering;
    6. good prison record;
    7. post conviction conduct, character and reputation;
    8. remorse and atonement;
    9. deference to public opinion.

    It has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law [see Law Commission Report, Page 328, Para 1071].

    It is necessary to keep in mind the salutary principle that:

    To shut up a man in prison longer than really necessary is not only bad for the man himself, but also it is a useless piece of cruelty, economically wasteful and a source of loss to the community. as quoted in Burghess, J. C. in (1897), U.B.R. 330 (334)
     

  7. The power under Article 72 as also under Article 161 is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. The exercise of power depends upon facts and circumstances of each case and the necessity or the justification for exercising that power has therefore to be judged from case to case. According to the Law Commission in its aforesaid report stated that it would not be desirable to attempt to lay down any rigid and exhaustive principles on which the sentence of death may be commuted.

    This Hon'ble Court in Kehar Singh's case did not accept the petitioners contention that in order to prevent an arbitrary exercise of power under Article 72 this Court should draw up a set of guidelines for regulating the exercise of the power. The Court opined that specific guidelines need not be spelled out and it may not be possible to lay down any precise clearly defined and sufficiently channelized guidelines [see Kehar Singh, Page 217].

    It is respectfully submitted that in view of the passage of time since the ruling in Kehar Singh's case and having regard to various instances of arbitrary exercise of power of pardon it is desirable that Hon'ble Supreme Court should lay down broad principles or criteria to guide the exercise or non-exercise of the pardon power, it is submitted that though the circumstances and the criteria for exercise or non-exercise of pardon power may be of infinite variety one principle is well settled and admits of no doubt or debate, namely that the power of pardon "should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals". [see 59 American Jurisprudence 2d, Page 11, Para 13].
     
  8. Constitutional position regarding exercise of pardon power
    The Hon'ble Supreme Court in the case of ["Maru Ram Vs Union of India & Anr", 1981 (1) SCC 107] ruled that the President and the Governors in discharging the functions under Article 72 & Article 161 respectively must act not on their own Judgment but in accordance with the aid and advice of the ministers [see page 146, Para 61].

    This legal position was re-affirmed by this Hon'ble Court in the case of Kehar Singh v. Union of India (supra).

    It was held in Maru Ram's case that the constitutional power under Article 72 & Article 161 cannot be fettered by any statutory provision such as Sections 432, 433 & 433-A of the Criminal Procedure Code, 1973 and the said power cannot be altered, modified or interfered with in any manner, whatsoever, by any statutory provisions or prison rules.
     
  9. Judicial review of exercise of pardon power under Articles 72 & 161
    It is well settled that the exercise or non-exercise of pardon power by the President or Governor is not immune from judicial review. Limited judicial review is available in certain cases.
    1. This Hon'ble Court in the case of Maru Ram supra, held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guide-lines for fair and equal execution are guarantors of the valid play of power. [see Page 147, Para 62].

      It is noteworthy that this Hon'ble Court has in Kehar Singh's case unequivocally rejected the contention of the Attorney General that the power of pardon can be exercised for political consideration [see Kehar Singh, Para 12, Pages 215-216].

      The Hon'ble Supreme Court in Maru Ram ruled that consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination [see Maru Ram, op cit, Page 150, Para 65].
       
    2. The Hon'ble Supreme Court in Kehar Singh's case ruled that the order of the President cannot be subjected to Judicial review on its merits except within the strict limitations defined in Maru Ram Vs Union of India. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court. [see Page 214, Para 11].
       
    3. It was also submitted on behalf of the Union of India, in Kehar Singh's case, placing reliance on the doctrine of the division (separation) of powers, that it was not open to the Judiciary to scrutinize the exercise of the "mercy" power [see Page 216]. In dealing with this submission on behalf of the Union of India the Hon'ble Supreme Court held that the question as to the area of the President's power under Article 72 falls squarely within the Judicial domain and can be examined by the court by way of judicial review [see Para 14, Page 217].
       
    4. As regards the considerations to be applied to a petition for pardon/remission in Kehar Singh's case the Hon'ble Supreme Court observed as follows : "As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram." [see Page 217]
       
    5. In the case of [Swaran Singh Vs State of U. P & Ors., 1998 (4) SCC 75] after referring to the Judgments in the cases of Maru Ram & Kehar Singh this Hon'ble Court held as follows:
      We cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. [see Page 79, Para 12].

      In Swaran Singh's case the one Doodh Nath was found guilty of murdering one Joginder Singh and was convicted to imprisonment for life. His appeal to the High Court & Special Leave Petition to the Supreme Court were unsuccessful. However, within a period of less than 2 years the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence.

      The Hon'ble Supreme Court quashed the said order of the Governor on the ground that when the Governor was not posted with material facts, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the impugned order fringes on arbitrariness [see Page 79, Para 13]. The Court held that if the pardon power "was exercise arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the Judicial hand must be stretched to it" [see Swaran Singh, op cit, page 79].

      The Court further observed that when the order of the Governor impugned in these proceedings is subject to Judicial review within the strict parameters laid down in Maru Ram's case and reiterated in Kehar Singh's case: "We feel that the Governor shall reconsider the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier, [see Page 79] and left it open to the Governor of Uttar Pradesh to pass a fresh order in the light of the observations made by this Hon'ble Court.
       
    6. In the case of [Satpal Vs State of Haryana, 2000 (5) SCC 170] Hon'ble Supreme Court observed that the power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. [see Page 174].

      Thereafter the Court held as follows:
      The said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is mala fide one or the Governor has passed the order on some extraneous consideration. [see page 174].

      The principles of Judicial review on the pardon power have been restated in the case of [Bikas Chatterjee Vs Union of India & Ors, [2004 (7) SCC 634 at 637].
       
  10. That on a proper reading of the aforesaid Judgments of Hon'ble Supreme Court it is clear that Judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
    1. that the order has been passed without application of mind;
    2. that the order is mala fide;
    3. the order has been passed on extraneous or wholly irrelevant considerations;
    4. that the order suffers from arbitrariness.

    The Hon'ble Supreme Court in its decision in Government of ["Government A. P & Ors. Vs M. T. Khan"", 2004 (1) SCC 616] stated that if the Government consider it expedient that the power of clemency be exercised in respect of a particular category of prisoners the Government had full freedom to do so and also for excluding certain category of prisoners which it thought expedient to exclude. The Court further observed that "to extend the benefit of clemency to a given case or class of cases is a matter of policy and to do it for one or some, they need not do it for all, as long as there is no insidious discrimination involved" [emphasis added] [see page 622, Para 6].
     

Conclusion
Article 72 of Constitution of India is about a very old but creatively renewed principle of a sovereign's prerogative to adjudge capital crime against the backdrop of its circumstances, not legalistically but civilizationally.

It is an opportunity for the sovereign, now our elected President, the First Citizen of India, to view a crime committed by one fellow citizen against another, which has invited the ultimate punishment, the legal taking away of the right to life, to see if that punishment than which there can be no greater punishment, is merited, deserved, fair, just and, above all, free from any error of Judgment by those tasked to judge it. In other words, the power to pardon is not about punishment as it is about redemption.

Sentencing people to death has been known to human societies, including ours, ever since the chance to commit crimes and the power to punish those have been known. But millennia after the death sentence has been made a part of our penal and punitive consciousness, the finer fibres of the human brain were actuated by the Supreme Court's definitional ruling in 1980 which said that the death sentence was to be awarded only in 'the rarest of rare cases". This pronouncement was as pragmatic as it was inspired by the world-wide trend against what was beginning to be seen as Judicial murder.

When considering the process of the power of pardon, the President has to be mindful of four facts about it - facts that are so important and foundational that they acquire the status of what may be called 'truths'. The four facts are summarized as under;

First:
Clemency is not a door which President may open to let misplaced mercy through; but it is one he may cause to be opened to see if fairness has been blocked at its threshold.

Second:
Pardon is not a gift the President may lavish on the criminals; but it is a power that the people of India have conferred on him to use when narrow codes hold a larger Justice hostage.

Third:
Mercy, when prayed for by one sentenced to death, is not just about an individual's scream for life against its judicial extinction, but part of humanity's journey towards a higher condition under law.

Fourth:
Article 72 of Constitution of India is not about the law, it is about the sovereign's overview of the human situation involved in capital crime, that see's in it that which the law cannot see or evaluate. only the nation's anointed guardian can and then again, not to saturate the law's appetites, but the thirsts of society's human sensibilities.

The power to pardon as given under Article 72 of the Constitution of India is a 'given' formulation of so many words which each copy of the Constitution of India must reproduce in exactly the same language. The Head of the State, however, is a human being, not a printed text. From predecessors distinct and from successors distinguishable, each Head of State is a thinking, reflecting human being, with views, memories, conditionings, pre-dispositions.

He or She can, therefore, bring certain philosophy to bear on the matter or, perhaps, none. The President uses his calibrated power to either reject the prayer and, thereby, turn the rejection into a noose or accept it, as a measure of his/her confidence that the ends of Justice are served through the lesser chastisement of a life-term in prison.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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