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

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