Pardoning powers of President/Governor


Pardon means to forgive a person for the offence he has done. Under the Indian Constitution, the power to grant pardon has been conferred on the President of India under Article 72 and the Governor of states under Article 161.

The President has commuted death sentences to life imprisonment in at least 20 cases over the past nine years, based on the recommendations received from the Ministry of Home Affairs (MHA).

Pardon

A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense, as if the act never occurred.

The object behind pardoning power is to correct possible judicial errors and miscarriage of justice. It is a mean to prevent innocent from punishment.

Why need Pardon?

  • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
  • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
  • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

Power of Pardon by President of India

Under Article 72, the mercy petition is filed to the President, and his powers are as follows:-

1. Pardon

The President can totally absolve/acquit the person for the offence and let him go free like an ordinary citizen.

2. Commutement

To reduce the type of punishment into a less harsh one. For example, Rigorous imprisonment to simple imprisonment.

3. Remission

To reduce the punishment without changing the nature of the punishment. For example, 20 years of rigorous imprisonment to 10 years of rigorous imprisonment.

4. Reprieve

A delay is allowed in the execution of a sentence, usually a death sentence for a guilty person to prove his innocence.

5. Respite

Reduce the degree of punishment looking at specific grounds like Pregnancy etc.

Note: The President can exercise the judicial powers at any stage, which means before, during, or after trial.


Cases as specified by art. 72

  • in all cases where the punishment or sentence is by a court martial;
  • 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;
  • in all cases where the sentence is a sentence of death.

Power of Pardon by Governor of a State

  • Similarly, as per Article 161: Governor of a State has 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.
  • It must be relating to a matter to which the executive power of the state extends.
  • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

Difference Between the Pardoning Power of President and Governor

  1. President can pardon the death sentence, but the Governor has no power to pardon the death sentence.
  2. The President can pardon in case of court-martial. But the Governor cannot pardon in a court-martial.
  3. President exercises his judicial powers for the punishment which is given under the law made by the union. Whereas the Governor uses his judicial powers for the punishment, which is provided under the law made by the state.

Nature of the Pardoning Power

  • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
  • This has not been discussed by the constitution but is the practical truth.
  • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
  • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

Is the power to pardon given to the president absolute and does this power come under judicial review?

The pardoning power of the President is wider than that of a governor. The President can pardon, respite, reprieve, and remit even in death warrant and court-martial. However, no power is absolute.

If the power is given absolutely, it may give rise to arbitrariness. Therefore the pardoning power of the President is subject to judicial review.

In the Epuru Sudhakar case, the Supreme Court ruled that to have a check on the pardoning power of the President; the judiciary can intervene to prevent him from doing arbitrary actions.

Supreme court on clemency powers of the President

In Maru Ram v Union of India: 

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.

Dhana v State of West Bengal: 

The Supreme Court reiterated its earlier stand in Maru Ram’s case. 

The Ranga Billa case: 

The term pardon itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.

Kehar Singh v Union of India: 

The grant of pardon by the President is an act of grace and cannot be claimed as a matter of right. The power exercised by the President being exclusively of administrative nature, is not justiciable.

Epuru Sudhakar case: 

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.
Shatrughan Chauhan case:  

Supreme court said that:-
  • Delay by the government in taking a decision about the mercy petition of the death row convicts was in fact a valid ground for commutation of their sentence.
  • The Supreme Court overruled its own verdict in which it had held that delay in deciding mercy plea cannot be a ground for commutation of death sentence.

The supreme court laid down the following principles:

  • The petitioner for mercy has no right to an oral hearing by the President.
  • The president can examine the evidence afresh and take a view different from the view taken by the court.
  • The power is to be exercised by the president on the advice of the union cabinet.
  • The president is not bound to give reasons for his/her order.
  • The president can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
  • The exercise of power by the president is not subject to judicial review except where the presidential decision is arbitrary, irrational, malafide or discriminatory.
  • Where the earlier petition for mercy has been rejected by the President stay cannot be obtained by filing another petition.

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