Judiciary must enforce the laws, whatever they be, and decide them according to the best of their lights. But the laws are not always just and the lights are not always luminous. The law in generality is needed to preserve the society, its norms and values. Every stream originating out of it has some socio-legal relevance which tries to protect and maintain the structure of society. Same is the case of clemency which is to preserve the most important aspect of society i. e. public welfare.
Rationale behind the power of pardoning is that the public welfare should be better served by it. The constitutional pardon is given to those, upon whom punishment inflicted would cause greater harm to society than their release. Keeping in mind the system of checks and balances, the concept was introduced in the Constitution of India so as to safeguard the rights and interest of general public because nothing has been deemed to be infallible in this world. The judicial methods are also not always adequate to secure justice.
Therefore the power to grant pardon exists to prevent injustice whether from harsh or unjust laws or from judgements which results in injustice. The word ‘pardon’ literally means ‘to forgive’. Article 72 and 161 of the Constitution of India gives the same power to the President and the Governor respectively to grant pardon with respect to a matter to which the executive power of the state extends. The concept was earlier contained in section 295 of The Government of India Act, 1935 and in section 401 and 402 of Code of Criminal Procedure, 1898.
The power of appellate court was recognised under section 426, CrPC, 1898. The Code of Criminal Procedure of 1861 and 1872, confined the power of the executive to remitting at any time, the punishment inflicted on a person; the code of 1882 and 1898 conferred on the executive the additional power of suspending the sentence at any time. The code of 1861, 1872, 1882 and 1898 conferred on the appellate court power to suspend a sentence pending appeal, but the Codes of 1882 and 1898 provided that the power was to be exercised for “for reasons to be recorded in writing”.
A detailed discussion in the constituent assembly, while framing the constitution, ended with the incorporation of the same concept under Article 72 and 161 respectively for the President and the Governors of the States. Chapter XXXII of the Code of Criminal Procedure, 1973 deals with the subject of Execution, Suspension, Remission and Commutation of sentences and in this chapter section 432, 433 and 433A deal with the power of Government to suspend or remit sentences, the power to commute sentences and the restriction on the aforesaid powers respectively.
Unfortunately there are a lot of loopholes in the concerned provisions and procedure adopted. This tends to reduce the efficacy of the remedy. Liberal interpretation of the language creates much confusion and ambiguity as to the ambit and applicability of the law. The framework of the provision also does not provide full support as is required to make it effective. There have been many controversies regarding the vitality of the law, its practical applicability and the undue delay in the disposal of the petitions. Since Independence there had been only 309 odd mercy pleas which the President had to decide.
Between 1997 and 2011 the President has disposed off 32 such petitions out of which 13 were done after a long awaited period of ten years. Latest RTI response reveals that 26 files of mercy petitions were recalled from Rashtrapati Bhawan out of which in most cases death sentence were reviewed by the Ministry of Home Affairs to be converted in to life sentence. It is unjustified to interfere so liberally with the Supreme Court decisions. At present, 12 petitions are pending before the President excluding that of Ajmal Kasab.
The situation exactly fits into the parameters of the famous saying “Justice delayed is justice denied”. No set parameters are defined to exercise the power. Politics also seems to play its most frequent role of being a doyen here. Many such other problems have made a cordon round the power which makes it impossible for the concept to grow and flourish in the required manner. The constitutional framework and its interpretation: Framers of the Constitution bring into picture Article 72 and 161 in order to give convicts a chance to live life again and to repent and to rectify the wrong so committed.
These articles 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) Noting in sub clause (a) 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 Constitution of India is based upon two basic doctrines, namely Rule of Law and Separation of Power. The former emphasizes the supremacy of law above all and the latter is based upon the concept of the division of state and federal government into three independent and separate branches: Executive, Legislature and Judiciary. Article 72 and 161 derives their power from the doctrine of Rule of Law and places the law and justice at highest pedestal.
However, in some perspectives there is a conflict between these powers and the doctrine of separation of powers because the executive here tends to interfere the judicial process which is a sphere different from that of executive. Also there is controversy regarding the nature of this power as to whether it is an executive power of the president or the judicial power specially granted to the president. A closer look into the pardoning power of the president and governor would bring home this point that each word under clause (1) of article 72 empowers the president to grant some kind of relief to the convict of a crime.
Though these powers are subsumed under the broad category of pardoning powers, the powers given under this clause can be divided into two broad categories i. e. full pardoning powers and partial pardoning powers. While respite, remission, suspension, commutation form part of partial pardon, under full pardon only the word pardon can be incorporated. Article 161 whereas does not confer any such identical power of granting full pardon in cases of offence punishable with death sentence.
This can be attributed to the fact that the article embodies only the power to pardon, commute sentence etc for any offence against any law relating to matter to which executive power of state extends, but nowhere has it mentioned that these powers apply equally to an offence for which death sentence has been awarded. Therefore it could be carved out from article 72 that the president besides the power of commutation, remission, reprieve etc.
also has the power to grant pardon to a death sentence, when it is seen as stand-alone power as opposed to other powers mentioned in the article. Hence the word pardon in itself contains the lesser powers such as commutation, remission, suspension etc. The pardon being an act of grace by the executive is meant to be taken to avoid the punishment for a crime by freeing the accused from all the guilt and the civil disqualifications as well. The offender is thus restored with all the legal rights which he had before the commission of the offence.
Such interpretation of the word has thus made it very difficult to execute any death sentence so awarded by the courts even in the rarest of rare cases. It would actually mean nullifying the effect of the complete judicial process throughout. While discussing about the scope of article 72 and 161 of our constitution, it is necessary to mention about the Section 433A of Code of Criminal Procedure. This section is not violative of the provisions of article 72 and 161 because the basic essence and source of the two powers is different.
Section 433A does not control the unfettered powers of the executive under Article 72 and 161 in any way. It imposes a condition on the grant of pardon and it is not completely unfounded. But the superiority of constitutional powers of pardon over the statutory powers under CrPC which cover almost the same area has been dealt in by the Supreme Court in Maru Ram v. Union of India . It observed: “That it is apparent if superficially viewed that the two powers are co-extensive. But two things may be similar and not the same.
This is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the constitution in the highest functionaries of the union and the states. The source is different, the substance is different, and the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously the constitutional power is ‘untouchable’ and unapproachable and cannot suffer the vicissitudes of simple legislative process.
” In Maru Ram, the central issue was whether S. 433A of CrPC puts a restriction on the power of president to grant pardon. The court in this context opined that the idea behind the section was to impose a restriction on state government so that they may not indiscriminately reduce the life term to 12 or less than 12 years. It further declared that the statutory power cannot have overriding effect on constitutional power and if a person is released under article 72 or 161 than section 433A will not be applicable to that case.
While concluding this unclear approach it is depicted by the Supreme Court as: “We hold that section 432 and 433 are not a manifestation of articles 72 and 161 of the constitution but a separate though similar power and section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to commute and the like... ” But since the legislature has made efforts, in my opinion it should be desirable for the government not to overlook the spirit of section 433A.
Furthermore it should be used as a guideline for the exercise of article 72 and 161. Apart from the convict’s problem, justice for victim must also be kept into mind. Because a punishment has a high deterrent value and its upkeep is important. Else justice without power is inefficient and power without justice is a tyranny. Thus the government must aim to achieve justice for the accused first and then for the victim otherwise it will be double victimization. The power was incorporated with a view to give relief in exceptional circumstances where the claimant deserves the mercy on the conditions specific to him or her.
For example a woman convict who is pregnant but is awarded death sentence, in such a case a rigorous punishment of death sentence is not required, not merely till the birth of the child but for the future maintenance of the child also. In such cases where the hands of judiciary are usually tied by clutters of law, the presidential powers can be invoked. Therefore the reason underlying the power to pardon is that there must be some forum of appeal higher than judiciary to prevent injustice either from harsh laws or from such judgements which leads to injustice.
Hence the necessity of conferring the power has always been recognised. But the only point of contention here is that there is no need for the convict to be absolutely pardoned for his or her guilt. And hence retaining the provision of pardoning the death sentence is unexplained. When there are other categories of partial pardoning suiting the individual need already in place for invocation than the concept of absolute pardon should be amended to that extent because the scales of justice should not tilt too heavily in favour of anyone.
Further the concept of power was taken from England but there has been a significant shift in the implementation of powers. Unlike in India, the right to pardon enjoyed by the crown was confined only to offences of public nature e. g. of road traffic etc. In India generally the pardon is pleaded for offences such as murder, rape and so on. Some of its examples are cases of Bikas Chatterjee v. Union of India involving brutal rape and murder of a school girl; another is that of Kuljeet Singh v. Lt. Governer of Delhi involving the horrendous murder of two children by the accused Ranga and Billa.
Therefore in such a state it is prudent to remove the word ‘pardon’ from article 72 clause (1) by an amendment to the constitution to prevent the ill effects that may befall by invoking such pardon in cases of death sentences. Procedure of dealing with mercy petitions: The title ‘power of president’ seems to be a misnomer because the power is generally used in compliance with the advice of the Ministry of Home affairs and hence it should be properly called the power of central government and the state government as the case may be.
Mercy petitions to the executive are often based on background of personal and social factors that explain the conduct of the convicted person, their psychological and cultural background and other special features, including material that could not be placed before the courts. Any mercy petition submitted to the President is first received in his Secretariat. Thereafter it is forwarded to the Ministry of Home Affairs for its comments and recommendations.
The separate section in the Ministry deals with such petitions in detail. An officer of the rank of Deputy Secretary or Joint Secretary examines the judgment of the Supreme Court and puts up a note of approval of the Home Minister. Such petitions together with the recommendations are submitted to the President for final disposal. In the exercise of his power, the President can examine and evaluate the evidence afresh. If the President agrees with the recommendations placed before him, he acts accordingly.
In case of disagreement with the recommendations, he may send his note of disagreement to the Home Ministry. In such an eventuality it is assumed that the Home Ministry will not differ from the views of the President. About exercising the power, the court in Maru Ram case said: “The power under article72 and 161 of the constitution can be exercised by the Central government and the State government, not by the president and the governor on their own. The advice of the appropriate, binds the head of the state. ”
Article 74: Council of Ministers to aid and advice President (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court
Article 163: Council of Ministers to aid and advice Governor (1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion (3)
The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court The above said article 74 clearly insists that the power given to the president to pardon has to be exercised in conformity with the aid and advice of the Council of Ministers. But the governor has been given some discretion to act on his own judgement under article 163. In case of Shamsher Singh v. State of UP the Supreme Court put some limitations upon this discretion that it has to be exercised in harmony with his council of ministers. Although the said constitutional provisions were debated in the constituent assembly at length, the grounds and principles on which the power should be exercised were not discussed. The exercise of power still depends on the facts and circumstances of each case and the necessity or justification for exercising that power depends on the case at hand.
Some illustrative examples of the same are: (a) interest of society and the convict; (b) the effect on family members of the victim; (c) the period of imprisonment undergone and remaining period; (d) seriousness of offence; (e) is there a doubt about the convict’s guilt; (f) health of the prisoner, especially any serious illness; (g) post conviction conduct, character and repute; (h) remorse and atonement and so on. But none of these considerations are based upon law or any legal grounds. The classic exposition of the law relating to pardon is to be found in Ex parte Philip Grossman where Chief Justice Taft stated that Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.
To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. The dicta in Ex parte Philip Grossman were approved and adopted by the apex Court in Kuljit Singh v. Lt. Governor of Delhi . In actual practice, a sentence has been remitted in the exercise of this power on the discovery of a mistake committed by the High Court in disposing of a criminal appeal. From the foregoing discussion, it emerges that power of pardon; remission can be exercised upon discovery of an evident mistake in the judgment or undue harshness in the punishment imposed. In the early case of K. M.
Nanavati v State of Bombay the reprieve granted by the Governor under Article 161 was held constitutionally invalid since it conflicted with the rules made by the Supreme Court under Article 145. In Swaran Singh v State of U. P. , the Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the State Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. 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.