Abhishek

Pardoning Power In India and its Judicial Review

Abhishek Puri 2 Dec 2017

Pardoning Power In India and its Judicial Review


ABSTRACT

 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 of the Constitution of India and both are having their own distinguished powers defined under the Constitution of India. Further the power of the president are much wider than the powers of the governor as he can grant pardon on the death sentence and he can also pardon in the cases relating with the court martial but the governor is not having such power and they have to exercise such powers on the advice given to them by their council of ministers but they are not bound to follow their advice. To keep 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. 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. This is also an issue arousing in the society that whether the judiciary is having the power to review the pardoning powers of the president and the governor or not?

INTRODUCTION

The power to pardon any punishment of a person is given to the President and Governor of our country by our Constitution and it is an act of grace, proceeding from the power by which the exempt any individual’s offence and the act of pardon means taking a person back to that position as he had not committed any offence i.e. the act of pardon takes the person to that position as he had never committed any crime or he was never punished for doing anything wrong, generally granting pardon means wiping off the offences of a person and makes him innocent as he was earlier before doing any  offence. As the Constitution of India came into the force, the law of pardoning in our country was the similar as prescribed in the law of  England as at that time the sovereign of England was the sovereign of India and  since 1935 the law relating with the provisions of pardon was described  in Section 295 of the Act of the Government of India and that did not prescribed any limitation on the power of sovereign and only the king could exercise this power at that time to grant pardon to person despite of any limitation but today’s time is different as today certain limitations are placed on the adorningpowers of the president and the governor and the judiciary is given power to review their powers and i.e. the power of “judicial review” by which they can declare any law or order of the legislative body or the executive body void, if found contravening with any provision of the Constitution of India and this power was granted to keep check as if the powers given are being used freely without any pressure or not i.e. it is working as per the ‘Procedure Established by Law’ and if not then it will be held as unconstitutional.

JURISPRUDENCE OF GRANTING PARDON

The philosophy underlying the pardon power is that 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 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 pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences.

PARDONING POWER IN VARIOUS OTHER COUNTRIES

The Pardoning power in U.K, U.S.A, Chile, Greece, France, Germany and India is as follows:

UNITED STATES OF AMERICA

In U.S.A. under Article 2, Sec.2 (1) has described the President the power to grant reprieves or pardons for the offences done by any person, except in case of impeachment. However the governor there can exercise his power to grant pardon only when the matter is concerned with the state law.

UNITED KINGDOM

In UK, the Constitution monarch is having the power to grant mercy or to show pardon to the accused for offence done by him.

CHILE

In Chile the pardon is regulated under article 93 of the criminal code and extinct the criminal liability of a person and it only grants the remission or the commutation of the sentence but does not remove the condition of being condemned. The pardon granted may be general but when it is granted it covers all the specific law passed by the National Congress or by the Supreme Court. In Chile the president is the head of the state having discretionary power to grant pardon or not and the president is not under any obligation to seek advice from any authority.

FRANCE

In France the pardon is granted by the President of France, who is ultimately regarded as sole judge and this power to pardon the perpetrator is inherited from the Kings of France. There the perpetrator has to send a request of pardon to the president of the Republic. Then the case goes to the ministry of justice for consideration and for grant of pardon.

GERMANY

In Germany the pardoning powers are similar as are in the United States as there also the right to grant pardon is divided between the State and the Federal and only the political crimes or terrorism crimes are tried on behalf of the federal governments by the state courts. The right to grant a federal pardon lies in the hand of the President of Germany, but the President can transfer this power to other persons i.e. the chancellor or the minister of justice.

GREECE

In Greece the power to grant pardon lies in the hands of the President of Greece under article 47 and the president is having the power to grant pardon like commute, remit and even on the proposal made by the Minister of Justice and grants pardon after taking advice from the Pardon committee but it is upon the President that whether to act according to the advice or not.

INDIA

In India, the pardoning power has been conferred on the president and the governor of a state and they both can exercise their powers according to the provisions of the Article 72 and Article 161 of the Constitution of India. 

REASON FOR PARDONING POWER 

Pardon is granted to a person so he may live simply as he have not committed any offence and this takes a person to the same position as he had not committed any offence and he may live peacefully in society..

Afterwards the pardon is granted to a person his mindset completely changes and he becomes a social person.

It is our society’s mindset or rule that everyone person should be granted a second chance to remit his mistake and live a peaceful life.

In other words, we can say that pardon takes a person to that position as he had never committed any offence and also it is done for public good.

KINDS OF PARDON

ABSOLUTE PARDONING

Where the accused or the offender is made completely free from the offence he committed and took him to that position as he had not committed any offence and there is no condition required for this kind of pardoning.

CONDITIONAL PARDONING

In this type to pardoning there are certain conditions which are to be fulfilled by the offender as if there will be any breach of the condition imposed then he may have to face punishment for that. [1]

PROCESS OF GRANTING PARDON IN INDIA

The process of pardon in India starts by filing a mercy petition to the president under Article 72 and to the Governor under Article 161 and then that is sent to the Central Government for consideration after that it is sent to the President for consideration.

Article 72-Power of President to grant pardons, etc. and to suspend, remits or commutes sentences in certain cases-[2]

1.         The President shall have the Power to grant pardons, reprieves, respites or remissions of punishments 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 sentences 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 fir the time being in force.

Under the above mentioned Article the President has got the Power to pardon the offenders/accused.

He also holds the following Powers:-

1.         Reprieves- a temporary suspension of the punishment fixed by law.

2.         Respites- postponement to the future the execution of a sentence.

3.         Commutation-changing a punishment to one of a different sort than that originally proposed.

4.         Remission-reduce the amount of punishment without changing the character of punishment.

The President can grant pardons and reprieves only in the following cases-

1.         Offences against Union laws;

2.         In all cases where the punishment or sentence is by a Court Martial; and

3.         In all cases of sentence of death.

Article 161-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 person convicted of any offence against any law relating to a matter to which the executive Power of the State extends.  [3]

DIFFERENCE BETWEEN THE PARDONING POWER OF PRESIDENT AND GOVERNOR

From the above mentioned Articles we can differentiate between the Powers of  the President and Governor as the President holds wide Powers than the Governor on the various points and moreover he also has to consult to the President before granting any pardon and has work on the basis of the orders given by the President.

1.         The Power of President to grant pardon extends to all cases i.e. where the offenders are punished by the Court Martial but under article 161 of the Constitution of India does not provide for any kind of similar provision for this as mentioned in article 72.

2.         The President is having the power to grant pardon in all cases as he can also pardon the death sentence given to any person but the governor is not having any kind of power to grant pardon to the death sentences.

3.         In respect of suspension, remission and commutation of sentence of death both the president and the governor are having concurrent Power.

CONCEPT OF REVIEW

According to the Merriam Webster Dictionary of Law-Judicial Review is the power of a court to review the action of public sector bodies in terms of their Constitutionality in some jurisdiction, it is also possible to review the Constitutionality of law itself.

As judiciary is regarded as a free and independent body of the Constitution as it is the demand of the people and of the Constitution and for the better and free implementation of justice it is necessary that it should be free and act as unbiased also the judiciary is having the power to review the decision of the executive or the legislature so where it seems to the judiciary that the fundamental or Constitutional right of the people are being violated there they automatically review the provisions and declare them ultravires and in case of pardoning also judiciary can review the power prescribed by the Constitution on the president and the governor.

The Government Sought To Answer Yes Or No To The Questions Implicit In Each Guideline While Determining Whether Any Of The Seven Grounds Applied To A Petition. These Grounds Are As Follows:

a.         Personality of the convict (such as age, sex, or mental deficiency) or circumstances of the case (such as provocation or similar justification).Thus, if the convict was very young, or a woman, or a mentally challenged person, or if the offence was committed under distress, these were considered as relevant factors for the granting of clemency.

b.         Has the appellate court expressed doubt on the reliability of the evidence but has nevertheless decided on conviction?

c.         Is it alleged that fresh evidence is obtainable, mainly with a view to seeing whether a fresh inquiry is justified?

d.         Has the High Court, on appeal, reversed an acquittal or has it, on appeal, enhanced the sentence?

e.         Is there any difference of opinion in the Bench of High Court judges, necessitating reference to a third judge?

f.          Was the evidence duly considered in fixing responsibility, if it was a gang murder case?

g.         Were there long delays in the investigation and the trial? Or remit the sentence imposed on him.[4]

FOREIGNERS AND THE PARDONING POWER

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of Paragraph A of the “Procedure regarding petitions for mercy in death sentence cases.” Petitions for mercy submitted on behalf of a convict under sentence of death shall be dealt with mutatis mutandis in the manner provided by these instructions for dealing with a petition from the convict himself. The petitioner on behalf of a condemned convict shall be informed of the orders passed in the case If the petition is signed by more than one person, it shall be sufficient to inform the first signatory. The convict himself shall also be informed of the submission of any petition on his behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners making petition for mercy to the President of India on behalf of any of the convicts. Looking to the very nature of the power to grant pardon or clemency, applications or petitions for mercy by foreigners will have to be considered on the same footing as those submitted by Indian citizens. In light of the above, it can be inferred that there is nothing to bar a foreigner from applying for mercy.

JUDICIAL REVIEW OF THE PARDONING POWER OF BOTH PRESIDENT AND GOVERNOR

There has been always an issue that whether the Power conferred by the Constitution of India on the executive i.e. upon the President under Article 72 and upon the Governor under Article161  to pardon the perpetrator should be reviewed by the judiciary by the way of judicial review or not. Various Honorable Court’s in their several of the cases have mentioned various rulings and moreover various of the guidelines have been issued for this issue and still it is an issue that has not completely been solved till today as only limited judicial review has been given.

In Maru Ram Etc. Vs Union of India[5] -It was said by the bench that the Power under Article 72 and 161 of the Constitution can be exercised by the central and the state governments, not by the President or Governor on their own .The advice of the appropriate government binds the head of the state. There is no necessary of passing of any separate order for each individual case is necessary but any general order made must be clear enough to identify the case. Further it was also laid down that all public Powers, including Constitutional Power shall never be exercisable arbitrarily or malafide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of Power.

The Supreme Court in Maru ram(supra) and kehar Singh  has held that the Power under Article 72 and 161 of the Constitution is to be exercised by the central and state governments and not by the President or Governor on their own. A move by successive Presidents to act on their own jeopardizes the Constitutional scheme and the court may soon be called upon to decide whether such action furnishes an additional ground for judicial review.

In RangaBilla’s [6] case once again the court was 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. Moreover 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 the term “pardon” it signifies that it is entirely a discretionary remedy and grant or rejection of it is entirely a discretionary remedy and grant or rejection of it needs not to be reasoned.

In Narayan Dutt& Ors vs State Of Punjab & Anr[7] - Article 161 of the Constitution of India confers on the Governor of a State the right to grant pardons, remissions, reprieves 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 nature and scope of the power of pardon and the extent of judicial review over such power has come up for consideration in a catena of cases and has now virtually crystallized into a rule of law.

In Swaran Singh Vs State of U.P. - In this the Governor 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 malafide or arbitrarily, such order cannot get approval of law and in such cases, the judiciary must interfere. The court held that the order of Governor arbitrary and hence needed to be interdicted.

In BikasChatterjeeVs Union of India & Ors [8]-The decision of the President of India on a petition under Article 72 of the Constitution is open to judicial review but the grounds therefore are very limited.

 In Manjit Singh Vs State Of Gujarat and Others[9] - 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.

In K.M. Nanavati Vs State of  Bombay[10] - In this reprieve granted by the Governor under Article 161 was held to be unconstitutional since it conflicted with the rules made by the Supreme Court under Article 145.From above Swaran Singh (Supra) the Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor’s previous rejection of his clemency petition in regard to the same case.

In Satpal& Anr.Vs State of Haryana &Ors[11] :-Court held that the Power of granting pardon under Article 161 was very wide and did not contain any limitation as to the time and occasion on which and the circumstances under which it was to be exercised. Since the Power is a Constitutional Power, it is amenable to judicial review on the following grounds:

a.         If the Governor had been found to have exercised the Power himself without being advised by the government,

b.         If the Governor transgressed his jurisdiction in exercising the said Power,

c.         If the Governor had passed the order without applying his mind,

d.         The order of the Governor was mala fide or

e.         The order of the Governor was passed on some extraneous considerations.

In EpuruSudhakar& Anr Vs Gove of A.P. & Ors[12] -It was held that 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:

i.          The order has been passed without application of mind.

ii.         The order is malafide.

iii.        The order has been passed on extraneous or wholly irrelevant considerations.

iv.        Relevant material has been kept out of consideration.

v.         The orders suffer from arbitrariness.

From the above referred case laws we can surely say that the Pardoning Powers given to the President and the Governor under the Constitution can be subjected to judicial review as well as those orders can be checked by the judiciary and if found any irrelevant or malafide things or interest then those orders can be quashed . moreover the judiciary also made various of the recommendations and framed various of the guidelines for the best use of these Powers as we can refer cases like :Maru ram(supra),epuru(supra),Satpal(supra) where the supreme court has laid down guidelines for the best use of these Powers. There must be judicial review of Pardoning Powers as the Supreme Court has also held that:

           Judges, who are also humans, are prone to judicial errors. To perfect the imperfections.

           Fallibility of human judgment can happen even in the most trained mind.(Pathak.C.J.InKehar Singh Vs U.O.I)

Also, the President and Governor have to take advice of the cabinet before using of this Power and moreover their advice should be followed also.

Justice Bhagwati in National Textiles Workers Union VsP.R.Ramakrishna [13] said that “Law cannot stand still: it must change with the changing social concepts and values. Law constantly is on the fast-changing society and not lags behind.”

SEPARATION OF POWERS

 Justice Frankfurter had remarked that the enforcement of a rigid conception like separation of powers is practically impossible. Very often, it is presumed that the pardoning power instituted in President and the Governor by the Constitution of India is prima facie in violation of separation of powers which is one of the aspects of the basic structure of our Constitution. But it should be very well pointed out here that the act of pardon by the executive is not at all the violation of this concept. The role of judiciary is limited to the job of hearing the case and making judgment delivery by interpreting the laws.

Implementing the sentence is altogether an executive function. The pardoning authority by giving pardon, respite, remission etc. performs an executive function which is modification of the implementing the sentence only and this is not at all a trespass on the territory of the judiciary.

A court only takes into contention what is brought before it in accordance with laws of procedure and evidence. Whereas, in matters of clemency, extra judicial matters are also taken into consideration on grounds of public good and welfare. These powers, although may have the same effect but they operate in distinct fields and on different principles.

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

RECENT ISSUE

CAN SUPREME COURT EXERCISE PARDONING POWER UNDER ARTICLE 32 READ WITH ARTICLE 142?

In Tara Singh Vs Union Of India[14] -the argument that when a pardon or remission can be given under Article 72(by President) or 161(by Governor) of the Constitution by the Constitutional authority, this court can exercise the similar Power under Article 32 of the Constitution, is absolutely based on an erroneous premise, the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious and we unhesitatingly repel the same.

CONCLUSION

The Pardoning Power of the executive is very significant as in some cases it corrects the errors of judiciary and also eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting pardon is very simpler but because of the lengthy government and political considerations, disposal of mercy petitions is delayed for a long period and as there is an urgent need to make amendment in law of Pardoning to make sure that clemency petitions are disposed quickly without any delay and the Powers must be used wisely and there should be a fixed time limit for deciding on clemency pleas and also it can be checked that the powers are being used as per prescribed by the Constitution’s provisions and Further judicial review of the Pardoning Power is good but only there where there is misuse of this Power and Power is used without proper information of the case or used malafide and Pardoning Power should not be absolute as well as judiciary should not interfere too much in exercise of this Power and as we know that judicial review is the basic structure of our Constitution and the Pardoning Power should be subjected to limited judicial review and if this Power is exercised properly and not misused by executive i.e. not used under any kind of pressure then it will certainly prove useful for removing the flaws of the judiciary.




[1] [1]Dr. J.N. Pandey, Constitutional Law Of India 482 (52 Ed. 2015).

[2] INDIA CONST. art. 72.

 

[3] INDIA CONST. art. 161.

[4] Vishalcnlu, Power of Pardon, (Apr. 5th, 2017, 10:00   AM), http://www.legalservicesindia.com/article/article/power-of-pardon-1572-1.html.

[5] (1981) 1 S.C.C. 107 (India).

[6] A.I.R. 1981 S.C. 1572 (India).

[7] CIVIL APPEAL NO.2058 OF 2011.

[8] (2004) 7 S.C.C. 634 (India).

[9] S.L.P. (Criminal) No. 7701 of 2012.

[10] A.I.R. 1961 S.C. 112 (India).

[11] A.I.R. 2000 S.C. 1702 (India).

[12] A.I.R.  2006 S.C. 3385 (India).

[13] A.I.R. 1981 S.C. 2239 (India).

[14] (2016) 11 S.C.C. 335(India).

 


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