How Indian President pardons

Thus when the President’s Absolute power to grant a pardon can be brought under
judicial review then why can’t the power granted to Indian President be reviewed.
Justice Bhagwati in National Textiles Workers Union v P.R. Ramakrishna said “Law
cannot stand still; it must change with the changing social concepts and values. Law
constantly is on the move adapting itself to the fast-changing society and not lag behind.

The biggest question which could be laid down against the conception of Judicial Review of the
power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if
president grants pardon on some moral & humanitarian ground whether in that case if judicial review
is done then how come a judiciary would close its eyes from the previous judgments which it has
given right from the lower courts against the pleader. It is more or less clear that it would revoke the
pardon & would revert back to its final decision. As per my view the judiciary when given a chance to
review a pardon should not go by the legal circumstances but it should deal with the moral values.
I cannot accept your canon that we are to judge Pope and King unlike other men, with afavourable
presumption that they do no wrong. If there is any presumption it is the otherway, against the holders of
power, increasing as the power increases.- Lord Acton (Quotedby Justice Krishna Iyer in Maru Ram v Union of
India)

In India, the President by the virtue of the Constitution of India is the Executive Head. He is
empowered with the power to pardon. This power of pardon shall be exercised by the
President on the advice of Council of Ministers

INTRODUCTION

Pardoning Power means granting pardon or making a person free from the act which he had
done i.e. it forbids the person for that crime which he has committed and takes the person to
that extent as he had never committed that crime. In various countries, this power is exercised
by the Head of the Nation or Country and similarly like this The Constitution of India has
given powers of pardon to the President and the Governor under article 72 and 161 and both
are having their own distinguished powers defined under the Constitution of India. The
President & Governors has to act on the aid and advice of their Council of Ministers in every
subject-matter, and this subject is no exception (though Governor has some discretionary
powers). To keep a check that whether they are exercising their powers bonafidely i.e.
without any kind of pressure or biasness, the judiciary is given power to keep a check on
them as the judiciary can check that whether they are using their powers as per the
Constitutional Provisions or not and can interfere in their working and can also give them
suggestions for using these powers. However, this is an issue arousing in the society 5
especially in the legal fraternity that whether the judiciary is having the power to review the
Pardoning Powers of the President and the Governor or not because there is no explicit
mention of the interference or intervention by the judiciary in the Constitution. But, in my
view, as a principle of natural justice and morality, there is no harm if the Judiciary takes a
review on the pardoning powers

Over a period of time, it became diluted in the U.K. and U.S.A. to a limited extent through the
exercise of judicial scrutiny, but its greatest dilution has occurred in India. The power of pardon is
subject to judicial scrutiny1 or not can be understood by the remarkable judgements of the Supreme
Court in the landmark cases of Maru Ram2 and Kehar Singh3 . In subsequent cases, the Court
enumerated specific grounds on which such scrutiny could be exercised. However, the Court has
wisely stopped short on laying down any explicit guidelines for the exercise of this power.

CONSTITUTIONAL PROVISIONS The relevant Constitutional Provisions regarding the grant of pardon,
remissions, suspension of sentence, etc. by the President of India and 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 : (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. (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 meaning of above-mentioned key-words related to Pardoning Power are :

Pardon - A pardon completely absolves the offender from all sentences, punishment &
disqualifications and places him in the same position as if he had never committed the
offence.

Commutation - Commutation means exchange of one thing for another. In simple words, to
replace the punishment with less severe punishment. For example, from Rigorous
imprisonment to Simple imprisonment

Reprieve - Reprieve means temporary suspension of death sentence. For example, pending a
proceeding for pardon or commutation.

Respite - Respite means awarding a lesser punishment on some special grounds. For
example, the Pregnancy of a woman offender.

Remissions - Remission means the reduction of the amount of sentence without changing its
character. For example, a sentence of 1 year may be remitted to 6 months.

OBJECTIVE OF PARDONING POWER

The Supreme Court of India, in Kehar Singh vs. Union of India6 has preferred to adopt the
view propounded by Holmes, J, in the context of India. Pathak, Chief Justice has observed on
behalf of a unanimous Court : “The power to pardon is a part of the constitutional scheme,
and we have no doubt in our mind that it should be so treated also 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 occasion
arises in accordance with the description contemplated by the context”. The reason for taking this
view is explained by the Chief Justice Pathak, in the judgement that ‘to any civilized society, there
can be no attributes more important than the life and personal liberty of its members’. The object of
conferring the judicial power on the President (and Governor in States) is to correct possible judicial
errors, for no human system of judicial administration can be free from imperfections.

PURPOSE OF GRANTING PARDON:-

Pardon may substantially help in saving an innocent person from being punished due to
miscarriage of justice or in cases of doubtful conviction. The hope of being pardoned itself
serves as an incentive for the convict to behave himself in the prison institution and thus,
helps considerably in solving the issue of prison discipline.

ARDONING POWER UNDER JUDICIAL REVIEW:

There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law
relating to judicial review of pardoning power.

In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that the
power under Article 72 is to be exercised on the advice of the Central Government and not by
the President on his own, and that the advice of the Government binds the head of the
Republic. The Supreme Court insisted that although the power of pardon is very wide, 'it
cannot run riot'. The Court emphasized that no constitutional power is to be exercised
arbitrarily. Public power vested on a high pedestal has to be exercised justly. 'All public
power, including constitutional power, shall never be exercisable arbitrarily or mala fide and,
ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power'
Thus, the power under Article 72 is not to be exercised on 'wholly irrelevant, irrational,
discriminatory or mala fide' considerations. 'Only in these rare cases will the Court examine the
exercise.' The Court then went on to suggest and expressed a view in favour of laying down some
guidelines for the purpose of exercising power under Art.72 in order to avoid any allegation of
arbitrary exercise of power

In 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.”

The Supreme Court in Kuljeet Singh vs. Lieutenant Governor of Delhi also known as Ranga Billa
case 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
grant pardon on the ground that no reasons were given for rejection of his mercy petition. The
court dismissed the petition and observed that the term “pardon” itself signifies that itis
entirely a discretionary remedy and grant or rejection of it need not to be reasoned.

Supreme Court once again in Kehar Singh v Union of India 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. The Court went on to say that it may indeed not be
possible to lay down any "precise, clearly defined and sufficiently channelised guidelines",
for the power under Art. 72 "is of the widest amplitude", and it can contemplate "a myriad
kinds of and categories of cases with facts and situations varying from case to case, in which
the merits and reasons of state may be profoundly assisted by prevailing occasion and passing
time and it is of great significance that the function itself enjoys high status in the
constitutional status."

In the early case of K.M. Nanavati v State of Bombay ] , Governor granted reprieve under
Article 161 which was held unconstitutional as it was in contrast with the Supreme Court
rulings under Article 145. Applying the rule of harmonious construction of the power of the
two organs so as to avoid the conflict between them, and the ambit of the power of the
Executive being wider and that of the Court being narrower, it must be held that the
Executive could not suspend the sentence during the time the matter is sub judice in the
Court. The Governor may grant a full pardon at any time, even when the case is pending in
the Court, but the suspension of the sentence for the period when the Supreme Court is seized
of the case could be granted only by the Court itself and not by the Governor. The Supreme
Court held in effect that the Governor's order suspending the sentence could operate only till
the matter became sub judice in the Court on filing the petition for special leave to appeal,
and no further. Thereafter, it is for the Court to pass such order as it thinks fit. The Court
refused to grant to Nanavati the exemption he prayed for.

In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, 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.

In a decision in 2013, the above mentioned judicial developments led the Court in Mohinder
Singh vs. State of Punjab AIR 2013 SC 3622, that a decision of the President of India on a
petition under Art. 72 is subject to judicial review but on very limited grounds.

On 21st January 2014, the judgment in Shatrughan Chauhan & Anr v. Union of India35 , was
delivered by a three-judge bench. The Supreme Court while commuting the death sentence of all 15
convicts into life imprisonment held that undue, inordinate and unreasonable delay in disposing of
the mercy petition is in itself a sufficient ground to entitle the convict to pray for commutation. The
delay in rejecting the mercy plea by the President amounts to torture and is a clear violation of
Article 21 of the convicts’ rights. The Supreme Court, at the same time, however, refused to fix up a
certain number of years above which undue delay would amount as torture and laid out that the
execution of sentence must only be done in consonance with the constitutional mandate. The Court
also gave guidelines for effective governing of the procedure of filing mercy petitions and for the
cause of the death convicts.

In Peoples’ Union for Democratic Rights (PUDR) v. Union of India37 , Allahabad High
Court while holding “Surendra Koli” (convict) guilty of committing murder of “Rimpa
Haldar”, allowed the petition and held that the execution of the sentence of death on the
convict would amount to infringement of his right to life under Article 21 of the Constitution
of India due to the unwarranted delay caused in the disposal of the mercy petition. The Court
also observed that a prolonged delay in the execution of the sentence of death has
dehumanizing effect on the convict and as a well settled principle of our constitutional
jurisprudence is regarded as a deprivation of the right to life itself

In Pawan Kumar Gupta vs. State of NCT of Delhi52 , one of the convicts in the Nirbhaya Gangrape
Case of 2012 contended that due to torture in the prison the petitioner had sustained head injuries
and that he was sutured with more than 10 sutures and proper treatment was not given to the
petitioner, the Court held, “The alleged torture, if any, in the prison cannot be a ground for judicial
review of the executive order passed under Article 72 of the Constitution of India rejecting the
mercy petition.”

In Sonu Sardar vs. Union of India45 , the Division Bench of Delhi High Court following the Supreme
Court judgment in V. Sriharan alias Murugan vs. Union of India46 , commuted the death sentence
and substituted it to a sentence of imprisonment for life.

The petitioner filed the writ petition and argued the case on three grounds : (i) Delay in adjudication
of the Mercy Petition (ii) Solitary Confinement (iii) Improper exercise of power by the Governor and
the President The Court noted that there is no unexplained delay ipso facto, which entitles the
convict to seek commutation of his sentence and the total time taken in deciding the mercy petition
was 2 years 2 months; this period by no means can be said to be inordinate. However, with regard to
the argument of solitary confinement the Court concluded that the petitioner was illegally kept in
solitary confinement despite not being under a ‘sentence of death’ for a period of about 3 years. It
was found that the convicts were housed in separate rooms with separate verandas and separate
toilets. This led to Solitary Confinement as per the judgment in Sunil Batra vs. Delhi Admn.47 .

CONCLUsion:

The biggest question which could be laid down against the Conception of Judicial Review of the
Pardoning Power is that, a person pleads for mercy when all the doors of judiciary closes for him, in
that case, if President grants pardon on some moral and humanitarian grounds whether in that case
if judicial review is done then how come a judiciary would close its eyes from the previous
judgments which it has given right from the lower courts to the apex court against the pleader. It is
more or less clear that it would revoke the pardon and would revert back to its’ final decision. As per
my view, the judiciary when given a chance to review a pardon should not go by the legal provisions
but it should deal with the case on moral and humanitarian grounds also.

The President's power of Pardon is granted, limited and controlled by the Constitution, both expressly
and impliedly. The sweep of this power therefore has to be gauged with the Constitutional Scheme in
mind, and not by repeated references.