Author: Ashwin Singh, Symbiosis Law School, Pune.
In ancient times when there were kings and queens, the pardoning power was used by them for their gain and for generating revenues. Now that the shift in kingdoms to democracies, from kings to presidents, the power has shifted and is now given for mercy and fairness. The president’s pardon is a power of the executive, given by the executive to interfere with the judiciary’s power, and therefore there is much scope of abuse of power, however not much abuse of this presidential power has been seemed in India.
The president has been called for by several people who were held guilty by the court of law in India, these people have called upon the president numerous times for his par doing power. However, the use of this power is very rare and the president of India since the independence of India has used this power very rarely.
History and Development of the power:
In English history, since England was a monarchy it was believed that everything was the king’s and a crime against the state was a crime against the king, and since everything and every power comes from the king, then the king must also have the pardoning power. In the United States, however, the democratic elements have tendered quite the opposite in a manner of saying as they tendered that since the people are the supreme and ultimate authority, they are the ones in power and therefore the people should have the right to pardon someone.
To comprehend the pardoning power in India, one will have to look at the situation of this power both in the US and in the UK. In the UK the British crown enjoys powers to pardon anyone or any criminal. However, it is not an absolute privilege and it is to be done after consultation and advice of the ministers of the Parliament. In the United States, this power is granted to the President under Art. II, Sec. 2(1). The power granted to the American president is absolute and can be used at any time. This power can be used against any offences other than impeachment, there is no judicial or legislative control over this power.
Legal History and Theory behind the power:
In Thomas v. Sorrel((1673) Vaugh 330 at 343) the maxim “non potest rex gratiamfacere cum injuria et damnoaliorum”, that is to say ‘the king cannot confer a favour on one man to the injury and damage of others’, was applied. The same principle has been applied in various cases. Justice Oliver Wendell expounded upon the nature of the pardon in the case of Biddle v. Perovich 274, U.S. 480 (1927) “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of our constitutional scheme. When granted it is the determination of the ultimate authority that public welfare will be served by inflicting less than what the judgment fixed”. The supreme court justified the existence of a pardon by agreeing to the fact that sometimes even the best legally trained minds can make a mistake in judgment.
Scope of this power in India:
Before the commencement of the Constitution of India, the pardoning powers were granted to the governor-general under the government of India act and the governor-general under Section 295 of the Government of India act has been conferred the discretionary power to grant to any person convicted by any criminal offence in British India, a pardon either free or subject to such conditions as he thought fit.
Under the constitution of India, the power to pardon has become a part of the Constitutional scheme. The Constitution of India conferred the power on the President of India and the Governors of States. When viewing the concept of pardoning, from the standpoint of India, it is notworthy to mention the case of Kehar Singh V. Union of India 1989 the court justified the fallibility of human judgment being something which is not deniable, and any such mistake can be remedied by entrusting the power to a higher degree and that shall “scrutinize the validity of the threatened denial of life or the continued denial of personal liberty”. Another case of the Apex court held that the President has the authority to commute any sentence placed by the lower court and reduce the sentencing.
In India, mercy is mostly given in the cases of life imprisonment or capital punishment and is only given in the rarest of rare cases. However, there are limitations to the ability of the court and they have been outlined in the (Report on Capital Punishment 317-318, 1967). This report was taken out by the Law Commission and observed the connection between the importance of mercy and the executive granting it. There are many matters which may have not been considered by the court. The hand of the courts is tied down by the evidence placed before it. A sentence of it passed by the court after consideration of all the evidence placed before it may yet require reconsideration because of
- Facts not placed before the court
- Facts placed before the court but not in the proper manner
- Facts discovered after the passing of the sentence
- Events which have developed after the passing of the sentence
- Other special features
The opinion of Judges on this power:
JP Rai had opined that “Judges must enforce the laws, whatever they are, and decide according to the best of their lights; but the laws are not always just and the lights are not always luminous. Nor, again are Judicial methods always adequate to secure Justice. The Power of pardon exists to prevent injustice whether from harsh, unjust laws or from judgments which result in injustice; hence the necessity of vesting that power in an authority other than the judiciary has always been recognized.”. Similarly, Chief Justice Taft in the case, ex parte Phillip Grossman held that “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law.”
Constitutional Provisions related to pardoning power:
Article 161:This article is the corresponding article and subsequent power available to the governors of various states similar to the President.
Article 72:This article states that the governor has the power to grant pardons etc. and 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 executive power of the state extends to matters concerning which the legislature of the State has the power to make laws.
Article 72(1): This article of the Constitution of India confers powers to grant pardons to the President of India and commute sentences in the following cases:
- In all cases where the punishment or sentence is by a Court Martial.
- In all cases where the punishment or sentence is for an offense 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.
This article also states that 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 passes by a Court Martial.
Rationale Behind Pardoning Power:
The pardoning power is to be used in a situation where it is believed by the president of power that the laws of the state have not functioned properly, otherwise, there would have been no need for this power. The pardoning power is to be used in those situations where it would have been the circumstances state that it would know that it would not have been in the interest of justice to give punishment to the person.
The power for pardoning is granted to the executive to be used in the case that the executive branch of the government finds or have reasons to believe that the justice administered by the courts, in good faith, is not justified or in case the executive has reason to believe that the situation is different than what is being informed. This power is provided to keep the judiciary in check by the executive in very special and rare cases.
The wordings of the Article:
The wording of the article is very important as well. The three main words mentioned in the article are ‘punishment’, ‘sentence’, and ‘offence’. These words show that power can be used by the president to save any person from any crime or punishment to which that person has been sentenced to. It is a well-established principle of law that a person can be sentenced and punished only when a person has been convicted by the court of law. Thus, if a person has not been given a fair trial in front of a judge with the full and proper investigation then there is no reason for the need of the power of pardon, as in this case the person should be tried again.
Therefore, it is important to note that the pardoning power can be exercised only in the case of a convicted person.
However, in some of the cases, the Court has said that the pardon can be granted even before conviction or trial by a Court. This principle was laid down in the case of In Re: MaddelaYerraChannugadu and Ors; it was said in the case,
“The pardon power includes not only that of granting absolute and unconditional pardons but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of Bombay and Ramdeo Chauhan v. the State of Assam.
One other situation to look at here is what will be the case in case, the person has been convicted by a military tribunal and not a court of law. Since the wording used in the article of the constitution is not “breach of contract” therefore the president could not grant the power of immunity. To be more precise, the word offense can be used only in the case when the act has done falls within the scope of the word offense as it is defined in the Indian Penal Code. One more important thing to note is that a person could be inquired under the Code of Criminal Procedure and not under any acts which do not define the offense as an offense. This issue was discussed at length by the court in Magbool v. the State of Bombay.
Pardoning power in view of Separation of Powers:
Supreme court in the case of Maru Ram v. Union of India held that “The power of pardon, commutation, and release under Article. 72 and161 “shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal executions are guarantors of the valid play power.”
In the case of EpuruSudhakar v. Government of Andhra Pradesh 2006, Pasayat, J. has laid down the following grounds under which judicial review of Article 72 is possible-
- When the order has been without the application of mind
- Order is mala fide in nature
- The orders have been passed after taking irrelevant facts into consideration
- The order suffers from drawbacks due to arbitrariness.
Effects of the pardon granted: Many a time it has been observed that what is the effect of the pardon granted by the President, and this has been tackled in the case of Sarat Chandra Rabha v. Khagendra Nath 1961, where the court has taken upon itself to answer the questions raised on the remission of sentence. It was held that the sentence in no way interfered with the jurisdiction of the court. A demarcation was cited between the reduction of the sentence and the remission order passed by the executive authority. Moreover, according to section 7(b) of the representation of people act the executive power in no way could interfere with the judicial sentence.
Abuse of this power:
Although in Independent India, this power is rarely used. And the chances of abuse are therefore the chances for the abuse and misuse of this power is also rare, however, the chances for abuse of power this power are ever-present in the nation and the country. For example, A possible time when this power could be used could be the hypothetical situation wherein the Home Minister could get convicted of a crime by a court of law, and subsequently, the president would use his pardoning power to pardon the home minister. However, thankfully this situation has not been seen in India, till now.A classic example of abuse of this power could be the pardon of Richard Nixon by the president of the USA Gerald Ford.
The pardoning power granted to the President is vert essential as it corrects the errors of the judiciary by eliminating the impact of the conviction without addressing the accused’s guilt or innocence. Mercy is usually delayed due to the complicated and time taking processes introduced by the government and political considerations, otherwise, it was an easy process. There appears an urgent need to bring forward amendments in law to make sure that pardoning takes place under Article 72 of the constitution of India without any delay.
There should be a tie frame allocated to deliver the cases which involve pardoning to prevent any kind of distress or trauma to the applicant. As far as the tussle over the judicial review, neither there should not be too much interference from the Constitution nor the pardoning power should be made absolute.
The combination of the democratic government and firm government should be firm. If the power is exercised in a proper sense and not misused by the executive, it will be sufficient to remove the flaws present in the judiciary.
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