THE PARDONING POWER OF THE PRESIDENT

WITH SPECIAL REFERENCE TO COURT CASE

STUDIES IN INDIA.
 TABLE OF CONTENTS

CONTENTS PAGE NUMBERS

EXECUTIVE SUMMARY 4

INTRODUCTION 5

6
POSITION IN OTHER JUDICIARY

PARDONING POWER UNDER THE 7

INDIAN CONSTITUTION

PROCESS OF PARDONING POWER 8

PARDONING POWER UNDER 8
JUDICIAL REVIEW
CONCLUSION
10

BIBILOGRAPHY 11

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 TABLE OF CASES

CASES PAGE NUMBERS

 Maru Ram v. Union of India…………………..............................................8

 Dhananjay Chatterjee alias Dhana v. State of West

Bengal………………………………………………………………………8

 Ranga Billa Case……………………………………………………………8

 Kehar Singh v. Union of India………………………………………….......9

 Swaran Singh v. State of U.P. ……………………………………………...9

 Epuru Sudhakar & Anr v. Govt. of A.P. & Ors…………………………….9

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 EXECUTIVE SUMMARY

The power to pardon is one of the powers which have been conferred on the
executive. Article 72 confers this power on the President and Article 161 does the
same on the Governor. This power has been provided to heads of various nations.
In monarchies, this power is vested with the Kings of those countries and it has
been exercised for centuries, but with the passage of time and the changing nature
of constitutional law, it has taken a new form now. The nature and scope of this
Article have changed drastically after the Court has started to look at the Article
in a broader manner. This paper discusses all these issues to get a complete
understanding of the pardoning power of president under the Constitution of
India.

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INTODUCTION

“A Pardon is an act of grace, proceeding from the power entrusted with the
execution of laws, which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed.”1

In common parlance, to pardon means to forgive a person of his offence. The

term ‘pardon’ has been defined as an act of grace, proceeding from the power
entrusted with the execution of the law, which exempts the individual on whom
it is bestowed upon, from the punishment the law inflicts for a crime he has
committed. It affects both the punishment prescribed for the offence and the guilt
of the offender.

In other words, grant of pardon wipes off the guilt of accused and brings him to
the original position of innocence as if he had never committed the offence for
which he was charged. Under Indian law, the President of India and the
Governors of States have been given the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the
sentence. The law governing grant of pardon is contained in Articles 72 and 161
of the Constitution.

Granting of pardon may be of two kinds;

Absolute: Absolute pardon may blot out the guilt itself. It does not amount to an
acquittal unless the Court otherwise directs. The accused is released permanently
without requiring any condition to be fulfilled.

Conditional: Under this pardon, the offender is let off subject to certain
conditions. The breach of these conditions will lead to revival of his sentence and
he shall be subjected to the unexhausted portion of his punishment.

In earlier times it was used by the Kings for their political gains, it helped them
in generating revenues. While now in the modern day understanding and use of
pardoning power is more often associated with notions of mercy and fairness, this
analysis will demonstrate that it also remains squarely in the political arena.
Called “pardons”, “amnesties”, “clemency”, “grace”, or mercy (as in Sweden),
the pardon power is included in the written constitutions of nearly all countries.
There are various reasons for the study of this area. The President’s power to
pardon deals with providing justice which is essentially a function of the
judiciary.

1
Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480.

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It is said that the power of pardon that has been granted, can be used in the
following cases:

 In respect of an act which, in the eyes of law, is an offense

 Which offense is in respect of a matter over which the executive power of
the Union extends and,
 For which punishment has already been adjudged.2

POSITION IN OTHER JUDICIARY

During the medieval period, pardon was extensively used as a method of reducing
overcrowding in prisons during war, political revolt etc. In modern democratic
countries, the power to grant pardon or clemency is vested in their executive
heads.

To understand the concept of the President’s power in India it is important to look

at the pardoning power in England and also in the United States of America. The
British Crown enjoys the privilege to grant pardon to any criminal. However it is
not an absolute privilege, it is to be done under ministerial advice. However, this
power is immune to the concept of judicial review. There is no time specified to
grant pardon, it can be done before conviction as well as after it. The Crown also
has the power to grant reprieve as well, it may just temporarily suspend the
execution of the sentence; or may remit the whole or part of the penalty.3

In the United States of America, the President derives this power to grant pardon
from Art. II, Sec. 2(1).4 This power is unlimited and can be exercised in case of
all the offenses with the exception of impeachment. There is no time frame for
the exercise of this power; it may be exercised at any time after the commission
of the suit. Like England, there is no judicial review of this power. However, in
addition to that, there is no legislative control as well. It is not considered to be a
private act, but it is included in the constitutional scheme. Now the researcher
would like to see at the development through case law

In Canada, pardons are considered by the National Parole Board under the
Criminal Records Act.

2
Supra Note Balkrishna at 105.

3
P.J. Dhan, “Justiciability of the President’s Pardon Power”, 26 Indian Bar Review 1999, at 69.

4
It reads as, “The President…..shall have power to grant reprieves and pardons for offences against the United
States, except in cases of impeachment”.

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PARDONING POWER UNDER THE INDIAN
CONSTITUTION

Before the commencement of the Indian Constitution, the law of pardon in British
India was the same as in England since the sovereign of England was the
sovereign of India. The Government of India Act, 1935, recognized and saved
the right of the Crown or by delegation to Governor-General to grant pardons,
reprieves, respites or remissions of punishment.

Section 295 of the Act, 1935, had conferred on the Governor-General acting in
discretion power to suspend, remit or commute sentences of death. The
prerogative of the Crown was also delegated to the Governor-General by the
Letters Patent creating his office, empowering him to grant to any person
convicted by any criminal offense in British India, a pardon either free or subject
to such conditions as he thought fit.5

In India, the power to pardon is a part of the constitutional scheme. The

Constitution of India conferred the power on the President of India and the
Governors of States.
Article 161 is the corresponding provision relating to the mercy jurisdiction of
the President,

Article 72 says that the Governor has the power to grant pardons etc., and to
suspend, remit or commute the sentence of any person convicted of any offense
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 with respect to
which the legislature of the State has the power to make laws.6

Article 72(1) of the Indian Constitution confers the power on the President to
grant pardons and commute sentences in the following cases:

 In all cases where the punishment or sentence is by a Court Martial.

 An 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.

Article 72(1) says 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.

5
P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71
6
V.N Shukla

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PROCESS OF PARDONING POWER
The process starts with filing a mercy petition with the President under Article 72
of the Constitution. Such petition is then sent to the Ministry of Home Affairs in
the Central Government for consideration. The abovementioned petition is
discussed by the Home Ministry in consultation with the concerned State
Government. After the consultation, recommendations are made by the Home
Minister and then, the petition is sent back to the President.

PARDONING POWER UNDER JUDICIAL REVIEW

Maru Ram v. Union of India.7

The issue, in this case, was, whether S. 433-A of Criminal Procedure Code,
would affect the Art.72 and Art.161 of the Constitution. It was argued that since
Sections 432 and 433-A, are statutory provisions, and modus operandi of the
Articles 72 and 161, therefore it would render Article 433-A ineffective. The
reason for this was that, it was different from the other two sections and therefore
it would be against the Constitutional Provisions. However, the court held that
although the powers under Art. 72 and Art. 161 and Sections 432 and 433-A may
be similar, but they are not identical. Supreme Court said that he power of pardon,
commutation, and release under Art. 72 and Art.161, “ shall never be exercisable
arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are
guarantors of the valid play power.”
Dhananjoy Chatterjee alias Dhana v State of West Bengal

The Supreme Court reiterated its earlier stand in Maru Ram’s case and said: “The
power under Articles 72 and 161 of the Constitution can be exercised by the
Central and State Governments, not by the President or Governor on their own.
The advice of the appropriate Government binds the Head of the state.”

Ranga Billa case

The Supreme Court was once again called upon to decide the nature and ambit of
the pardoning power of the President of India under Article 72 of the Constitution.
In this case, death sentence of one of the appellants was confirmed by the
Supreme Court. His mercy petition was also rejected by the President. Then, the
appellant filed a writ petition in the Supreme Court challenging the discretion of
the President to grant pardon on the ground that no reasons were given for
rejection of his mercy petition. The court dismissed the petition and observed that

7
AIR 1980 SC 2147.

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the term “pardon” itself signifies that it is entirely a discretionary remedy and
grant or rejection of it need not to be reasoned.

Kehar Singh v Union of India8

Supreme Court once again reiterated its earlier stand and held that the grant of
pardon by the President is an act of grace and, therefore, cannot be claimed as a
matter of right. The power exercisable by the President being exclusively of
administrative nature, is not justiciable.

Swaran Singh v State of U.P.9

In this case the government of U.P. had granted remission of life sentence
awarded to the Minister of the State Legislature of Assembly convicted for the
offence of murder. The Supreme Court interdicted the Governor’s order and said
that it is true that it has no power to touch the order passed by the Governor under
Article 161, but if such power has been exercised arbitrarily, mala fide or in
absolute disregard of the “finer cannons of constitutionalism”, such order cannot
get approval of law and in such cases, “the judicial hand must be stretched to it.”
The Court held the order of Governor arbitrary and, hence, needed to be
interdicted.

Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors

In this landmark judgment, it was held by the Supreme Court that it is a well-set
principle that a limited judicial review of exercise of clemency powers is
available to the Supreme Court and High Courts. Granting of clemency by the
President or Governor can be challenged on the following grounds:

 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 material has been kept out of consideration.
 The order suffers from arbitrariness.

Now, it is a well settled principle that power under Articles 72 and 161 is
subject to judicial review.

8
AIR 1989 SC 653

9
(1998) 4 SCC 75

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 CONCLUSION
The pardoning power of Executive is very significant as it corrects the errors of
judiciary. It eliminates the effect of conviction without addressing the defendant’s
guilt or innocence. The process of granting pardon is simpler but because of the
lethargy of the government and political considerations, disposal of mercy
petitions is delayed. Therefore, there is an urgent need to make amendment in law
of pardoning to make sure that clemency petitions are disposed quickly. There
should be a fixed time limit for deciding on clemency pleas.

Regarding the judicial review debate, pardoning power should not be absolute as
well as Judiciary should not interfere too much in exercise of this power. As
judicial review is a basic structure of our Constitution, pardoning power should
be subjected to limited judicial review. If this power is exercised properly and not
misused by executive, it will certainly prove useful to remove the flaws of the
judiciary.

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 BIBLIOGRAPHY
AUTHORED BOOKS
M.P. Jain , Indian Constitutional Law ( Kamal Law House, Calcutta, 5th Edition, 1998).

V.N. Shukla, Constitution Of India ( Eastern Book Company, Lucknow, 13th Edition,2017).

AMENDMENTS
The Constitution ( One Hundred And Third Amendment Act),2019.

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