Pardoning Power.docx

Introduction “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” 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. The reasons for this interference of the executive in the functions of the judiciary have to be explored, understood and appreciated because it is an obvious exception to the doctrine of separation of powers which is one of the most eminent doctrines in the Constitution of India. The executive gives an absolute power of pardon to the executive. The likelihood of abuse of such a power is immense. Therefore, an analysis of case law with regard to presidential pardon is very important. Pardon is a concept based on mercy, therefore, mercy as a concept has to be studied and the question why mercy is vested with the executive and not with the judiciary has to be looked into. In the process of answering these questions the researcher also intends to look into some other aspects of this power. One such aspect is to look into the wording of the Article. It is very important to note the way the Courts interpret various Articles and what was the intention behind framing such an Article. There are different ways in which an Article or a Section can be interpreted. The importance of wording of Article and its interpretation can be best understood by looking at Article 21 of the Constitution. The nature and scope of this Article has changed drastically after the Court has started to look at the Article in a broader manner. Similarly looking at this article’s words helps us to understand in a better manner. In addition to this there are other issues as well like foreigners applying for pardon, judicial review of pardon and the guidelines for exercise of pardon power. The researcher has made an effort to discuss all these issues to get a complete understanding of the issue. Constitutional Provisions: Article 161 is the corresponding provision relating to the mercy jurisdiction of the President, Article 72saysthat the Governor has the power to grant pardons etc., and 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 executive power of the state extends to matters with respect to which the legislature of the State has the power to make laws.

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 offence 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. Reasons behind Pardoning Power: The pardoning power is in derogation of the law. Implying that if laws could always be enacted and administered so they would be just in every circumstance to which they are applied, there would be no need for the pardoning power. Therefore, the power to pardon is meant to be used in those circumstances where it would not be in the interest of justice to strictly apply the law even if the circumstances call for the same. Executive clemency exists to afford relief from undue severity or plain mistake in the operation or enforcement of the criminal law. The administration of justice by the Courts is not necessarily always wise or certainly understanding of circumstances, which may properly alleviate guilt. It is a check entrusted to the Executive for special cases. A country would be most imperfect and deficient in political morality without a power for clemency. Wording of the Article: It is very important to look at three words to understand the correct interpretation of the article. These three words are ‘punishment’, ‘sentence’ and ‘offence’. The first two words show that the pardon by the President will save a person from the consequences of an offence and from a punishment as well. The researcher at first would like to look at the word ‘offence’. The manner in which it is used makes it quite evident that that the punishment and sentence we spoke about are in respect of the offence committed. This implies that the punishment which is supposed to be pardoned has to be in respect of an offence and not for any simple breach of a condition. The reasoning that is given for the above said statement is derived from the meaning of the word offence as it is given in the General Clauses Act, 1897.It is difficult to say that the same definition cannot be applied to Art.72 as well. It has been said that in reality it is this definition only which is used in this Article. It is said that the power of pardon that has been granted, can be used in following cases:   

In respect of an act which, in the eyes of law, is an offence Which offence is in respect of a matter over which the executive power of the Union extends and, For which punishment has already been adjudged.

It is a well established principle that a person can be sentenced or punished only when he has been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes

of the law. Thus if a person has not been given a chance of a fair trial or a proper investigation has not been carried out against that person, then there is no reason why that person should be given a pardon, because he is still innocent. Therefore, it is important to note that the pardoning power can be exercised only in the case of a convicted person only. However, in some of the cases the Court has said that the pardon can be granted even before conviction or trial by a Court.This principle was laid down in the case of In Re: Maddela Yerra Channugadu and Ors; it was said in the case, “The pardon power includes not only that of granting absolute and unconditional pardons, but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of Bombay and and RamdeoChauhan v. State of Assam Now let us look at another situation, if the trial of a person is held not by courts but by a tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an offence? The general situation will be that of non-compliance of the terms of a certain contract and therefore, termination of the same. The answer would be no, as in such a case the term, ‘breach of conditions’ is used and not the word offence. To be more precise, the word offence can be used only in the case when the act done falls within the scope of the word offence as it is defined in the Indian Penal Code. In addition to this it is important to note that the person should be inquired under Code of Criminal Procedure, because if it is done under an Act which does not characterize the act as an offence, then the word punishment would not hold the same meaning as it is meant to be in Art.72. This issue has been discussed in Maqbool Hussain v. State of Bombay. The same issue was discussed in S.A. Venkataraman v. Union of India; the Court in this case held that: Before Article 20(2) could be invoked, it is essential that the earlier prosecution must have been under the Act which created that offence. After looking at these two cases it is evident that before the question of the exercise of the power of the President to grant pardons can arise the person to whom pardon is granted must have been awarded punishment or sentenced by a competent court of law or judicial tribunal. Distinction between Pardon and Amnesty: The issue that is discussed under this head is that whether there is a difference between amnesty and pardon. Taking the situation of revolts, in such cases the head of the state makes a proclamation that the rebels who surrender would be granted pardon and all their offences will be omitted. Can we say here that the President has the power to do so under Art.72? If we look at the situation more closely then we can see that irrespective of the words used by the President in the proclamation actually does nothing more than giving a promise to the rebels. Therefore, even if the word pardon has been used in the proclamation, in actual the action of the head of the state does not amount to pardon from a punishment. The reason being, at the time of the issue of declaration no person would have been awarded any punishment. As said earlier that it is important to prove a person guilty before he can be granted pardon, it is important to prove that a person has participated in a rebellion.

Therefore, before granting pardon it is important to prove in the Court that the person has participated in the rebellion. Pardon is granted to a specified individual while the promise not to take action on the rebels surrendering arms is addressed to an unspecified body of rebels. Such an action therefore may not be termed grant of pardon in the sense in which the expression is used in Art 72. Thus the President does not have the power of granting amnesty to rebels. This power is vested only with the Parliament. It is important to note that the power given under Art. 72 is not unlimited, it is only in respect to the offences mentioned in the sub-clause (a), (b) and (c) of clause 1 of the Article. The President can exercise his power only in respect of the subjects to which the executive power of the union extends. Thus, it is clear that pardon and amnesty differ in their import and therefore amnesty does not fall within the ambit of Article 72. Natural Justice and Pardoning Power: There is a big question that whether the principles of natural justice be applied to Art. 72 and Art.161. The researcher at first would look at the arguments favouring the application. Though the power to grant pardon is executive, it is more quasi-judicial in nature. A quasijudicial body would impose a duty to act fairly. The Supreme Court has held that the constitutional safeguard enshrined in Article 21 extends to the executive disposal of mercy petitions. As a part of the constitutional scheme, Article 72 is subject to the discipline of Article 21. Therefore, the accused should have a minimal right to fair hearing. On the other hand there have been cases in which the Court has said against the application of natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab that the power of the government is executive in nature and the principles of natural justice cannot be grafted thereon by means of judicial innovations and activism. Since the principles of natural justice have been applied at each stage of the sentencing procedure, it may legitimately be done away with at the executive stage. Time Frame for the Exercise of Power: Even in this area there is a debate as to whether we can have a time frame for the exercise of the pardon power. The Supreme Court has taken both the stands and the researcher would present both the view points. It has been observed by the Supreme Court that a period of anguish and suffering is an inevitable consequence of sentence of death but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of the view that delay in the decision of the President causes avoidable mental agony and suffering to the convict. Therefore, to contain such unnecessary harm to the convict there should be a time frame during which the executive has to give its decision. Article 21 demands that any procedure, which takes away the life and liberty of persons, must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life. If there has been an inordinate delay in the disposal of a mercy petition then procedural fairness is vitiated and Article 21 is violated. Therefore, there should be a time frame for the disposal of a mercy petition.

However, there is a different point of view as well. In this the Court has taken a different stand from that taken by the Court in earlier cases. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. Moreover, no fixed delay can be considered a fixed period. The court, therefore, cannot prescribe a time limit for disposal even of mercy petitions. The Case of Presidential Self-Pardons: This is another issue which needs to be looked at, whether the executive has the power to grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine the public’s confidence in Presidency and the Constitution. It is also against the principles of natural justice, that a person should judge himself. In the case of Calder v. Bull, the Supreme Court expressed its view against allowing a person to be self-judge. In one of his writings Madison wrote that, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and not improbably, corrupt his integrity.” The same principle was followed later in the case of Spencer v. Lapsley in addition to these judgments there has been various other cases which unanimously state the principle that no man shall be judge in his own case. The case indicates that not only is this a venerable principle of philosophy and history, it is an essential part of the structure of our constitutional government. Like other issues this one also has the other side of the argument where one can argue that self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the President has to act on the advice of the council of ministers while granting pardon. Now, since the council of ministers can be tried and put on trial for a criminal offence the question, which arises, is whether they can pardon themselves. Article 72 of the Constitution creates no exception to the President’s power to pardon in order to invalidate self-pardons. Therefore, theoretically, a self-pardon by the council of ministers is very well possible. 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.

Article 72 and Impact of other Statutes: The conflict of Art .72, with another statute, came before the Court in the case of Maru Ram v. Union of India. 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. This decision was later affirmed in RamdeoChauhan v. State of Assam, it was held that the power under Article 72 and Article 161 of the Constitution is absolute and cannot be hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by any prison rules. A similar question came up before the Court in the case of Madhav Shankar Sonawane v. State of Maharashtra, here the issue was that whether Section 307 of the Indian Penal Code, read with Section 34 of the Indian Penal Code, which has a sentence of minimum of 25 years after conviction, places a limitation on the exercise of power under Art.72. The Bombay High Court in the above case held that it is not allowed to the Courts to hold that a convict shall have to undergo a minimum period of sentence even with an exercise of constitutional jurisdiction by high constitutional functionaries under Article 72 and 161. After looking at all these cases, it can be concluded that in no situation can any legislation place a limitation on the power under Art. 72 and Art. 161. Judicial Review of Article 72: Supreme Court in Maru Ram v. Union of India, said that the 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.” In Kehar Singh v. Union of India, it was said that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram’s case. Looking at these cases, the Court did not actually call for judicial intervention. However, in Swaran Singh v. State of U.P, the Supreme Court invalidated the remission of sentence by the Governor because some material facts were not brought to the knowledge of the Governor. Not only this, the Supreme Court had asked the President to reassess his decision when it was of the view that the decision of the President was totally arbitrary and unfair. In another case the Governor decided to grant pardon to 66 life convicts and there was a petition under Article 226 by 10 other convicts claiming that their cases satisfied the criteria relied upon by the Governor in granting concession, it was held that it is for the Governor, on the suggestions of concerned authorities, to deal with remissions of punishment or to commute the sentence. It was held that the High Court cannot appropriate the power of the Governor in a petition under Article 226 of the Constitution and grant pardon to the petitioners. It is clear from the above case that the Court cannot usurp powers to grant pardon itself based on the criterion followed by the President and can in no circumstance reverse the decision of the President. Therefore we can conclude that the Courts can exercise judicial review over the exercise of pardon in a very limited sense to correct an unfair or arbitrary decision.

Pardoning Power and Judiciary The President while exercising the power under Article 72 can go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court. The power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relied falling within that power. He can, on scrutiny of the evidence on record in the criminal case, come to a conclusion different from that recorded by the Court in regard to the guilt of, and sentence impose on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. Therefore, there is no interference with the functions of the judiciary. 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 improve or avoid particular criminal judgments. It is only a check entrusted to the Executive for special cases. It is clear that the powers vested in the President of India under Art. 72; in the Governor under Article 161 of the Constitution and in the State Government under S. 401 of the Cr.P.C. are essentially executive powers of mercy which operate in completely different fields. The trial of criminals and the passing of sentences are purely in the domain of the judiciary whereas the execution of sentences is purely with the Executive Government. Thus it is clear that the orders under Article 72 are essentially and basically executive orders in a completely different field. The Head of the Executive exercises his powers of mercy under the Constitution commonly known as ‘mercy jurisdiction’. Since, no such powers are vested with any judicial organ; there can be no infringement upon its functions. Conclusion As seen that Presidential pardon is one of the powers that been given to the executive by the Constitution. The researcher in his conclusion would like to look back at the issues discussed and analyze them. The first issue that the researcher would take up is the importance and necessity of pardoning power. It is very important to have this power in Constitution of all the countries. The reason for this being that there should be some authority which should be present to keep a check and rectify the mistakes made by the judiciary. The legislature can also do this, through a process of passing a law. But, in the case of individuals it is not possible for the legislature to pass a law. In such cases the executive can pardon the individual. This process is also important because awarding death penalty to someone is the highest punishment that can be awarded to anyone. Thus, it is important to review it by the Head of the State. There is a necessity on the part of the legislature to bring an amendment to the constitution, to prevent the use of power in one’s own case. Meaning that there should not be any selfpardoning.On the part of the executive. The reason for this being that in such a case there would be a bias and abuse of power will take place. It is also important to set a time frame for the exercise of this power; this will help in early disposal of the cases. Judicial review of this power is another issue which is debatable. The researcher is of the opinion that this power should not be absolute, at the same time the judiciary should not interfere with his power too much, it should only be done in the case of arbitrariness and malafide.

The principles of natural justice should be imbibed in the exercise of clemency powers because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be set as the scope will differ from case to case basis.