President is regarded as the ‘Head of State’ and has been vested with powers which include judicial and executive; when we talk of ‘Pardoning powers’, it is in nature of executive power. Previously, the British Monarch was vested with the powers of pardoning, but it did not have any restrictions. Although any Bill may not become a law until it does not have an accent of the President after the 44th amendment, this power has been curtailed to a lot extent. But when we talk of pardoning powers, it exclusively is that of the President and Governor, though it is subject to judicial review, the extent of which is limited.
The issue of Pardoning power came into light in May 2022 after a 3-judge bench of the Supreme Court reprimanded the Centre on their argument that the President has “exclusive power” to decide Rajiv Gandhi assassination convict A.G. Perarivalan’s plea for pardon. She was sentenced to a life sentence for murder. The point of contention here was the prolonged delay by the governor on the pardon and release of Perarivalan. Along with questioning the Center’s locus standi, the court stated that if it were to accept the Centre’s stand, then Article 161 would be nothing but a dead letter.
PARDONING POWER-
CONCEPT
Article 72 of the Constitution bestows the power of Pardoning on the President. It states that ‘(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—
(a) in all cases where the
punishment or sentence is by a Court Martial;
(b) 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;
(c) in all cases where the
sentence is a sentence of death.
So as we can say, the nature of power is quite broad; the following are its meaning of it-
- Pardon– In this case, the criminal is set free in terms of conviction and sentence. If a particular person is pardoned, he can live his/her life like an ordinary citizen.
- Reprieve– It means a delay which is allowed to a person for the execution of a sentence to seek a legal remedy which may be available like delaying the execution of a death sentence.
- Remission means changing the quantum of sentences without changing the nature of sentences.
- Commute– It means changing the type of punishment a person is convicted with at the time of conviction. Like a death sentence to any other punishment etc.
Article 161 of the Constitution vests similar power on the Governor of a particular state. It states that
‘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.’
Difference of Powers given under Articles 72 and 161- The pardoning power of the President is more comprehensive than that of the Governor in the sense that-
- Article 72 vests pardoning power in the case of Court Martial, which Article 161 does not.
- In the case of the pardoning of the death sentence, the President is empowered in this regard but not the Governor.
NATURE OF PARDONING POWERS- FROM A JUDICIAL PERSPECTIVE
As far as the exercise of the right is concerned, in Maru Ram v. Union of India[ii], the Supreme Court emphasized that the powers vested in articles 72 and 161 of the Constitution can be exercised by the President and Governor on the advice of Central and State Government respectively and not on their own. Similar was held in the case of Dhana v. State of West Bengal[iii], in which it was held that the advice of the State and Central Government was to be taken into account by the Governor and President as well.
In Kehar Singh v. Union of India[iv], the Apex Court held that ‘the power to pardon is a part of the constitutional scheme and should be treated in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State and enjoys high status. It is a constitutional responsibility of great significance to be exercised when the occasion arises in accordance with the discretion contemplated by the context. The court, in this case, observed specific essential points regarding the pardoning power of the President and Governor, which are listed below-
- The power to pardon depends on the advice the executive gives, and as per Article 74(1) provision, it should be exercised in accordance with such advice.
- Article 72 of the Constitution leaves scope for the President to form a different opinion than that of the Court.
- In exercising the above-mentioned prerogative, it does not in any way modify or supersede the judicial records. It remains intact.
- Exercising the above powers is acting under Constitutional capacity and not as an extension of judicial powers.
- This article does not give the right of the oral hearing to a person whose case is presented before the president; since the power is executive, it requires to submit all the necessary information and has no right to insist on presenting an oral argument.
- The manner of consideration is within the President’s powers and his discretion.
In the case of Devender
Pal Singh Bhullar v. State of NCT Delhi[v],
the court held that powers under Articles 72 and 161 should be
exercised in aid and advice of the ministers. It further stated that the
constitutional status of Article 72 and 161 is not affected by common grounds
mentioned in Section 433-A of Cr.P.C. Section 433-A of Cr.P.C. states that ‘
Notwithstanding anything contained in section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for which
death is one of the punishments provided by law, or where a sentence of death
imposed on a person has been commuted under section 433 into one of
imprisonment for life, such person shall not be released from prison unless he
had served at least fourteen years of imprisonment.
JUDICIAL REVIEW OF THE PARDONING POWER
As we observed above, the powers bestowed on the President are not unlimited. It has certain restrictions to it. To keep a check on these powers, Judiciary has been tasked with restricting but how much of it can be restricted is a matter of discussion. This has been dealt with in a slew of cases to reach where it is today. We shall look at the cases now-
In Maru Ram v. Union of India[vi], the Constitution Bench held that all public power, including constitutional power, should not be exercised in a malafide manner or arbitrary manner. The Bench emphasized that “power being of the greatest moment, cannot be a law unto itself, but the finer canons must inform it of constitutionalism”. But the court, in this case, further emphasized that if power is vested in high authority, it ought to have exercised it correctly and after due consideration of all the aspects that should be kept in mind while carrying out the judicial review of these powers.
Pardoning power exercised by the President or Governor is not immune to Judicial Review has been further emphasized in the case of Epuru Sudhakar v. Govt. of Andhra Pradesh[vii]. The Apex Court lists down the grounds on which the power of Judicial Review can be exercised, which are-
- the order has been passed without application of mind;
- the order is mala fide;
- the order has been passed on extraneous or wholly irrelevant considerations;
- relevant materials have been kept out of consideration;
- the order suffers from arbitrariness
To cite an example where the decision of the Governor to commute the sentence of a Member of the Legislative Assembly was quashed by the Supreme Court in the case of Swaran Singh v. State of Uttar Pradesh[viii]. The court, in this case, laying down the counters within which this power can be exercised, said that ‘if clemency power has been exercised in absolute disregard of the “finer cannons of constitutionalism”, such an order cannot get the approval of the law, and in such cases, the judicial hand must be stretched.
SEEKING MERCY- CONSTITUTIONAL
RIGHT OF PRISONER–
In the famous case of Shatrughan Chauhan v. Union of India[ix], the court dwelled on the subject that ‘whether the delay in the disposal of mercy petitions’ makes a death row convict eligible for commutation of his sentence. This decision overturned the two-judge bench judgment of Devender Pal Singh v. Government of NCT Delhi[x], in which the court did not regard it as a valid ground for commutation of sentence. In this case, the court held that such delay indeed makes the prisoner entitled to commute his sentence, and hence the bench, in this case, commuted the death sentence of 12 prisoners. The court further observed that:
“keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime”.
The court laid down in this case that ‘seeking mercy is a constitutional right of the prisoner.’ It laid down some guidelines to be followed in case of mercy petitions-
- As soon as a mercy petition is received, the Ministry of Home Affairs should place it along with court records and files before the President without delay.
- Legal Aid in case of rejection of the mercy petition by the President.
- Communication of rejection of mercy petition by the Governor and the President.
- Death convicts are entitled to a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
- Minimum 14 days notice between the receipt of communication of the rejection of the mercy petition and the scheduled execution.
- Mental health evaluation of death row prisoners.
- Physical and mental health reports by the prison superintendent.
- The final meeting between the prisoner and his family.
- Furnishing documents to the convict- These documents are a must for the preparation of appeals, mercy petitions and accessing post-mercy judicial remedies, which are available to the prisoner under Article 21 of the Constitution.
Srishti Srivastava[i]
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
[i] The author is UGC NET Dec 2020 qualified, has done her LLM from Hidayatullah National Law University (HNLU) Raipur and LLB from Hemvati Nandan Bahuguna Garhwal University, Srinagar.
[ii]
(1981) 1 SCC 107.
[iii]
(1994) 2 SCC 220.
[iv]
(1989) 1 SCC 204.
[v]
(2014) 14 SCC 336.
[vi]
Id. at 1.
[vii]
(2006) 8 SCC 161.
[viii]
(1998) 4 SCC 75.
[ix]
(2014) SCC 1.
[x]
Id at 4.
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President is regarded as the ‘Head of State’ and has been vested with powers which include judicial and executive; when we talk of ‘Pardoning powers’, it is in nature of executive power. Previously, the British Monarch was vested with the powers of pardoning, but it did not have any restrictions. Although any Bill may not become a law until it does not have an accent of the President after the 44th amendment, this power has been curtailed to a lot extent. But when we talk of pardoning powers, it exclusively is that of the President and Governor, though it is subject to judicial review, the extent of which is limited.
The issue of Pardoning power came into light in May 2022 after a 3-judge bench of the Supreme Court reprimanded the Centre on their argument that the President has “exclusive power” to decide Rajiv Gandhi assassination convict A.G. Perarivalan’s plea for pardon. She was sentenced to a life sentence for murder. The point of contention here was the prolonged delay by the governor on the pardon and release of Perarivalan. Along with questioning the Center’s locus standi, the court stated that if it were to accept the Centre’s stand, then Article 161 would be nothing but a dead letter.
PARDONING POWER- CONCEPT
Article 72 of the Constitution bestows the power of Pardoning on the President. It states that ‘(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—
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) 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;
(c) in all cases where the sentence is a sentence of death.
So as we can say, the nature of power is quite broad; the following are its meaning of it-
Article 161 of the Constitution vests similar power on the Governor of a particular state. It states that
‘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.’
Difference of Powers given under Articles 72 and 161- The pardoning power of the President is more comprehensive than that of the Governor in the sense that-
NATURE OF PARDONING POWERS- FROM A JUDICIAL PERSPECTIVE
As far as the exercise of the right is concerned, in Maru Ram v. Union of India[ii], the Supreme Court emphasized that the powers vested in articles 72 and 161 of the Constitution can be exercised by the President and Governor on the advice of Central and State Government respectively and not on their own. Similar was held in the case of Dhana v. State of West Bengal[iii], in which it was held that the advice of the State and Central Government was to be taken into account by the Governor and President as well.
In Kehar Singh v. Union of India[iv], the Apex Court held that ‘the power to pardon is a part of the constitutional scheme and should be treated in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State and enjoys high status. It is a constitutional responsibility of great significance to be exercised when the occasion arises in accordance with the discretion contemplated by the context. The court, in this case, observed specific essential points regarding the pardoning power of the President and Governor, which are listed below-
In the case of Devender Pal Singh Bhullar v. State of NCT Delhi[v], the court held that powers under Articles 72 and 161 should be exercised in aid and advice of the ministers. It further stated that the constitutional status of Article 72 and 161 is not affected by common grounds mentioned in Section 433-A of Cr.P.C. Section 433-A of Cr.P.C. states that ‘ Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
JUDICIAL REVIEW OF THE PARDONING POWER
As we observed above, the powers bestowed on the President are not unlimited. It has certain restrictions to it. To keep a check on these powers, Judiciary has been tasked with restricting but how much of it can be restricted is a matter of discussion. This has been dealt with in a slew of cases to reach where it is today. We shall look at the cases now-
In Maru Ram v. Union of India[vi], the Constitution Bench held that all public power, including constitutional power, should not be exercised in a malafide manner or arbitrary manner. The Bench emphasized that “power being of the greatest moment, cannot be a law unto itself, but the finer canons must inform it of constitutionalism”. But the court, in this case, further emphasized that if power is vested in high authority, it ought to have exercised it correctly and after due consideration of all the aspects that should be kept in mind while carrying out the judicial review of these powers.
Pardoning power exercised by the President or Governor is not immune to Judicial Review has been further emphasized in the case of Epuru Sudhakar v. Govt. of Andhra Pradesh[vii]. The Apex Court lists down the grounds on which the power of Judicial Review can be exercised, which are-
To cite an example where the decision of the Governor to commute the sentence of a Member of the Legislative Assembly was quashed by the Supreme Court in the case of Swaran Singh v. State of Uttar Pradesh[viii]. The court, in this case, laying down the counters within which this power can be exercised, said that ‘if clemency power has been exercised in absolute disregard of the “finer cannons of constitutionalism”, such an order cannot get the approval of the law, and in such cases, the judicial hand must be stretched.
SEEKING MERCY- CONSTITUTIONAL RIGHT OF PRISONER–
In the famous case of Shatrughan Chauhan v. Union of India[ix], the court dwelled on the subject that ‘whether the delay in the disposal of mercy petitions’ makes a death row convict eligible for commutation of his sentence. This decision overturned the two-judge bench judgment of Devender Pal Singh v. Government of NCT Delhi[x], in which the court did not regard it as a valid ground for commutation of sentence. In this case, the court held that such delay indeed makes the prisoner entitled to commute his sentence, and hence the bench, in this case, commuted the death sentence of 12 prisoners. The court further observed that:
The court laid down in this case that ‘seeking mercy is a constitutional right of the prisoner.’ It laid down some guidelines to be followed in case of mercy petitions-
Srishti Srivastava[i]
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
For daily legal updates, you may follow us on Instagram and LinkedIn and join our Telegram channel.
[i] The author is UGC NET Dec 2020 qualified, has done her LLM from Hidayatullah National Law University (HNLU) Raipur and LLB from Hemvati Nandan Bahuguna Garhwal University, Srinagar.
[ii] (1981) 1 SCC 107.
[iii] (1994) 2 SCC 220.
[iv] (1989) 1 SCC 204.
[v] (2014) 14 SCC 336.
[vi] Id. at 1.
[vii] (2006) 8 SCC 161.
[viii] (1998) 4 SCC 75.
[ix] (2014) SCC 1.
[x] Id at 4.
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