Posted on: August 21, 2020 Posted by: admin Comments: 0

Author : Jatin Karela, Student at NLU, Jodhpur

ABSTRACT

Nowadays where almost every country has the principle of separation of powers among the Legislative, Executive and Judiciary, but still some overlaps are there. One such example is power to pardon, which is vested to highest authority other than judiciary, i.e. Executive. This research is going give a better understanding of the pardoning power in India: “its evolution and relevance in today’s time”. The powers of the president were always remained in question. It makes it a need to have a understanding of his power and especially the pardoning power. Some basic aspects like what was the need of this power? Why it is in the hands of executive? And some other aspects which frame the power in India, as it is now, are taken.

INTRODUCTION

“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full; it releases the punishment and blots out of existence the guilt, so that in the eyes of law, the offender is as innocent as if he had never committed the offence.”

Historically the monarchs had power to grant pardon as being depicted as God of their subjects; handling the life and death matters. But interestingly this provision of mercy or pardon is still retained and is entrusted to the highest authority in almost all democratic countries. The very thought behind having pardoning power is that judges can also do wrong while deciding the fate of a person. As said by Lodge that, “I never expect to see a perfect work from imperfect men.”

This paper is going to study about the stand of pardoning power in India and many questions regarding to its different aspects and relevance had been made.  , which is entrusted in the hands of the President of India and to the Governors of states under Articles 72 and 161 of the Indian Constitution, respectively.

An order wise approach had been taken in the paper, such as very first discussing about the justification of this for breaking of principle of separation of power by the courts itself and then looking how the courts provided for the use of this power and then the significant topic that whether the decision taken by the President on the mercy petition can be judicially reviewed or not? And at last its relevance in the contemporary India.

EVOLUTION OF PARDONING POWER

Our artistically designed constitution entrusts the President with power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence[1].

Governors of each State are also vested with the similar powers[2]. However, their powers extends to their respective fields, i.e. President’s on the matters under the jurisdiction of the Central legislation and Governors on the matters under the State’s jurisdiction and further both can exercise their power on the matter concerning the concurrent list. In many cases different aspects related to the pardoning power had been discussed which will be looked upon in the coming discussion.

PARDONING POWER IN THE HANDS OF EXECUTIVE

First we need to make sense that why such a power is given to the executive questioning the principle that “doing justice is work of judiciary”? What is the justification behind putting pardoning power of executive on the higher pedestal than that of the judgment by the courts?

The courts itself advocated this power of executive on various instances, it catechize that, though in every democracy judiciary is defined as the branch of the government to insure justice to all, can we say that judgments by courts always serve justice?  Eminent Indian jurist Shri.H.M.Seervai said:

“Judges must enforce the laws, whatever they be and decide according to the best of their lights, but the laws are not always just, and the lights are not always luminous”[3]

This view is further consolidated by Taft, CJ observation in Ex parte Philip Grossman that “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law.”[4]

It had been rationalized by the Law Commission of India[5] on the prerogative of mercy that the judgments of courts moreover based on the facts and evidences of the case and there can be many problems with the facts and even evidences itself leading the commission not to vary from the old concept of pardoning power in the hands of executive.

The Apex Court of India in famous case of Kehar Singh v. Union of India[6] had also explained and justified the existence of pardoning power in the hands of the executive by agreeing to the view that miscalculations can be made by the courts in awarding sentence to the convicted causing injustice, and this situation can be remedied best by entrusting pardoning power to a higher authority. Further it held that longer sentence would be “a useless piece of cruelty, economically wasteful and a source of loss to the community.” [7]

DISCRETION OF THE PRESIDENT

Though the president had expressly given the power to grant pardon, there is provision too in the Constitution which states that the president cannot use its powers on his own whims and fancies, i.e. Article 74 which says:

“There shall be a Council of Ministers with the Prime Ministers at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.”

Does the president needs the aid and advice of the Council of Minister while acting on the mercy petition? To this P.N. Bhagwati, former CJI in the Bachan Singh case[8] observed that since the State is a prosecuting agency in criminal cases and advice by the Ministry is bound to be political, it will not inspire confidence. Thus it cannot be expected to decide on a mercy plea objectively and upset a judicial verdict, therefore concluding President to enjoy absolute powers to pardon. This seems to be a valid argument but it can be rebutted on the point that if the framers of our constitution had wanted the president and governor to be the sole authority to decide, they would have exclusively provided it in the provision of pardoning power.

This dilemma was finally settled by the judiciary in Maru Ram v. UOI[9] that the president exercises pardoning power as any other power entrusted upon him making aid and advice of Council necessary for its use and is not open for independent use by president. That “it is fundamental to the Westminster system that the Cabinet rules and the Queen reigns being too deeply rooted as foundational to our system…the President is an abbreviation for the Central Government.”[10]

But what if there is unreasonable delay, which is impregnable, as we very well known how fast our government works. The delay will ruin the very purpose of having provision of mercy in the society we live now and best described “Brooding horror of haunting the prisoner in the condemned cell for years”.[11] That’s why the Court in T.V. Vatheeswaran v. State of Tamil Nadu[12] and Triveniben v. State of Gujarat[13] gave the path to the jurisprudence of commuting the death sentence based on undue delay. Entitling the President to make prudent use of power to pardon and dispose of the petition in an expeditious manner if there is unreasonable delay on the part of the Council of Ministers. The indefinite deferral of a decision for mercy petition has undesirable impact of casting the constitutional power to pardon in bad light.[14]

If there is still delay in deposing of mercy petition by President, the Supreme Court, under Article 32, court is well within its powers to hear the grievance of the convict and commute the death sentence into life imprisonment, but only after satisfying that the delay was not caused at the instance of the accused himself.[15]

GUIDELINES

In the case of Maru Ram, the court came up with the question that whether guidelines for exercising of pardoning power should be framed or not and in this particular judgment the court favored this to be done. Contrarily in its later, Kuljeet Singh and Kehar Singh judgments, court took different view regarding the guidelines. In Maru Ram the court postulated that if government is to keep faith in framers of the Constitution then framing guidelines for use of its own power is the right thing to do to meet exceptional situations and upcoming development as it will exclude any type of discrimination on religions, caste, color or political loyalty grounds.

Later a writ petition was filled before the SC that, doesn’t uniform guidelines is necessary to make the president to exercise his pardoning power fairly and reasonably? The court found it as a far-reaching important question but had dismissed this appeal and left the question open. Finally it settled in the Kehar Singh judgment that “there is sufficient indication in the terms of Article 72 and in the history  of the power enshrined in that provision as wall as existing case-law, and specific guidelines need not to spelled out”[16], giving it a wider ambit. Then in State of Punjab v. Joginder Singh, court observed that this power “is absolute…this power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.”[17]

The courts, while not framing any guidelines, had tried to describe the principle and considerations of public welfare for president to take into account. Two factors had been classified for considering the mercy petition (its grant and non-grant), i.e. the welfare of public and the welfare of convict. First that ignorance of public welfare while disposing mercy petition amounts to failure of duty. Secondly where a case requires welfare of both public and convict, a convict who has substantially served a term of imprisonment, is of advanced age and is suffering from a critical illness and there is no material whatsoever, that if, this convict is released, he will be a menace to society, would necessitate that a pardon be given, non-grant of pardon would tantamount to failure of obligations under Article 72.[18] To this H.Kapadia, J., in Epuru Sudhakar v. Govt of A.P viewed that “While exercising such a power the President or the Governor as the case may be has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future”[19] and is given to them for the welfare of the public, not the convict.

SCOPE OF PARDONING POWER

Another controversial aspect is that to what extent the President can exercise the power to Pardon? To this Article 73 clearly says that power of union executive extends to the matters under jurisdiction of the union parliament and is coextensive with that of the Union Government.

For example, sections 489-A to 489-D of the IPC, including the offences relating to the currency and coinage, falls exclusively under the jurisdiction of Central Government which means Central executive powers extend to these matters. Accordingly the President is competent to remit the sentence of person convicted under these offences.

Most debated topic under this is that whether can contempt of court or contempt of the legislature be pardoned? Two approaches can be taken with respect this by taking slight different meanings of the word ‘offences’. First by accepting the meaning given to the word ‘offences’ in the General Clauses Act made applicable to the interpretation of the Constitution by Article 367. And second by following a broad approach, by including all acts for which there is a punitive sanction as being covered by the term ‘offences’. Though the choice would not have any impact on the major offences covered under IPC, it would be significant in case where the nature of the act or omission of offence is not clear.[20]

This question, for the first time in India, considered in the case of the State v. Padma Kanta Malviya[21], court examined Article 215 of the Constitution of India with Contempt of Courts Act, 1926 and concluded that by reading both it is clear that the same is just an inherent power of the High Courts and did not make contempt of court punishable. Therefore, stating that contempt of court is not an ‘offence’ for the purposes of Article 20(3).

Similar power to pardon is given to the Crown in UK which enjoys a prerogative to grant a pardon to any criminal on ministerial advice. And in USA the president have this power against the offences committed against the United States except in cases of impeachment. While discussing the matters regarding the nature of power of pardon entrusted to our president the court follows the views of the US Supreme court.

It was contended in ex parte Grossman that if pardoning power is extended to criminal contempt of court, it would be an invasion of judicial power; it may be abused and may amount to tinkering of the concept of separation of powers. But the U.S. Supreme Court held that President’s power to pardon extends to criminal contempt of court and negatived all the contentions. But the Issue of exercise of pardoning power in cases of contempt of court is res Integra in our country and it is not so in the US and UK.

By the SLP filled in the case of Kehar Singh, SC of India came up with the question that to what areas can the President’s scrutinize evidence while exercising his power to pardon? To which Pathak, C.J., speaking for the constitutional bench observed that

“To any civilized society, there can be no attributes greater than the life and personal liberty…..the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinize the validity of the threatened denial of life or personal liberty…..”[22]

Though this observation is in different context, but still it can be parallely applied to Criminal Contempt, as that also includes the question of personal liberty enshrined under Article 21.

Criminal cases could cross three stages: trial court, high court and the Supreme Court. Even the apex court held that to protect personal liberty, the President can come to a different conclusion. A broader interpretation will strengthen the purpose of article 21 for the cases of contempt under articles 129 and 142, having only one stage. And since the Parliament has the power to prescribe maximum punishment, article 72 (1)(b) is attracted to contempt actions also.[23] So in criminal cases the president can decide whether the petition for mercy fall within that power or not, by examining the evidence on record and can reach to a different conclusion than one given by the court.

Initially the Court uttered that pardoning power cannot be exercised for person booked under law such as TADA, contemplating that how can a person who ruthlessly killed innocent people can plead for mercy? But the SC in Shatrughan Chauhan held that there is no good reason to disqualify all TADA cases (e.g. where there is unreasonable delay in execution of death sentence) and the said that supervening circumstance is applicable to all types of cases including the offences under TADA. Even the Court, in subsequent cases including Yakub Memon case, had actually commuted the death sentence to life imprisonment.

STAGE AT WHICH THE PARDON CAN BE GRANTED

Plain reading of Article 72, implies that the President can exercise the power only after the conviction of the person. But it was debated that when or at what stage of the trials or court proceedings can this pardoning power be exercised? This question came up before the Court in the very starting years of our Constitution. When Andhra Pradesh government on 12-1-1954 issued an order granting general amnesty to all prisoners in the Jails, in the state of AP, under the control of that Government and also the Andhra prisoners in the jails and Institutions in the Mysore and Madras States meant for the reception of prisoners etc., celebrating the inauguration of Andhra State. Order was issued by the Governor well within its power under Article 161 and Section 401, Cr. P. C. But in Re Maddela Yera Channugadu[24], validity of order had been challenged on the ground that it includes condemned prisoners awaiting confirmation of their sentences from the HC.

Government argued that firstly the confirmation of the charges by the Session Court will amount to the conviction of the person though the confirmation by the High court is still pending as the confirmation of the sentence is end to the proceeding in a court of session which gives the safeguard to the person against the perpetration of any injustice.

Secondly that, as our court follows US Supreme Court on the matters concerning the pardoning power and the US Supreme Court clearly lay down that President can exercise pardoning power at any stage after the commission of the crime[25], therefore the order by Governor should be uphold.

Then in State of Maharashtra v. K.M. Nanavati, where the commander Nanavati had appealed in the SC after his conviction from the High Court of Bombay; meanwhile the Governor suspended the sentence imposed. This order of the Governor was challenged. The full bench of the Bombay High Court relied on the judgment of the Re Channugadu and held that the framers of our Constitution intended to confer on the President and the Governors (within their respective jurisdiction), the same power of pardon, reprieve and clemency, both in its nature and effect, as was possessed by the Sovereign in Great Britain and by the President in the USA.[26]

 It can be seen to be a hasty decision because pardoning power in the England is a Royal prerogative which can be exercised by Crown at any stage after the conviction of crime, but in India it is regarded as the constitutional scheme. So we should not concern about the working of pardoning power in UK.

And regarding the USA there is a slight difference in the way of wordings. US Constitution enunciates the power to pardon to the president as “… he shall have the power to grant reprieves and pardons for offences against the United States except in cases of impeachment”[27] using the words as ‘offences against United States’. But our Constitution uses the words punishment and sentence for persons convicted of an offence and here comes the difference. Perhaps that’s why the three-judge bench of the SC in Harshad S. Mehta, while distinguishing the powers of courts under Sections 306 and 307 CrPC and those of the President/Governor under the Constitution, observed that the latter powers are meant to be exercised after a person has been found guilty.[28] But this was not taken into account by majority.

JUDICIAL REVIEW

Power corrupts and absolute power corrupts absolutely. And the country in which we live, we call it as democracy therefore how can an absolute power is vested to only one person over which there is no control or checks. “The power of judicial review provides a kind of check over misuse of this extraordinary power in the hands of executive organ of the state.”[29] So over the period of time the judiciary had settled that the exercise of the pardoning power by the president can be challenged before the court and can be judicial reviewed but on very limited grounds been clearly dictated by the court and, so as to not to interfere the executive power.

This had been considered by the court in G Krishna Goud v. State of Andhra Pradesh[30] where a mercy petition was filed and refused by the President. In return a petition was filed but the Court differentiated pardoning power as in different natures by observing that historically it was a sovereign power and considering politically it is well classified as residuary power and said that humanistically it is an aid of intangible justice for the well-being of the community, beyond the blinkered court process. The court pointed out that “all power, however, majestic the dignitary wielding it, shall been exercised in good faith, with intelligent and informed care and honestly for the public will”. Founding no abuse of power in the said case, court refused the petition.

Later in Maru Ram, court said that though the power is very wide but it cannot run riot and can be used arbitrarily. Court taken into account Article 14 and observed that this power shouldn’t be exercised ‘ordinarily, mala fide and arbitrarily’ and stated that:

 “Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation…cannot be a law unto itself but must be informed by the finer canons of constitutionalism.” [31]

This was mere obiter dictum, having no binding effect, recommendations which are considered in the later judgment of Kehar Singh[32] where the court had said that power to pardon cannot be exercised on ‘wholly irrelevant, irrational, discriminatory or mala fide factors’ as this will vitiate the exercise. It was recognized that the power of the president is not absolute and beyond judicial purview. And the courts will only interfere if the power is exercised mala fide or in an arbitrary or discriminatory manner.[33] In Epuru Shudhakar v. Government of AP[34], the court looked that the consideration of religion, caste or political loyalty is prohibited while exercising the pardoning power and President/Governor shouldn’t look only at benefit of convicts but to the family of victim or the precedent it will set in society.

CONTEMPORARY RELEVANCE

The very foundation of pardoning power is not to just provide mercy to the convicted person but to do justice. Though this task is assigned to our judiciary but as no human is perfect and so no human run institution can. Courts only decide on the facts and evidences presented before it, which can be manipulated. Therefore all the democracies still have the provision of pardoning power.

Continued existence of pardoning power in the hands of executive is due to the fact that primary purpose of punishment is a strictly practical one, namely, to assure obedience to law. When inflicting punishment, the State looks not to the past, but to future; not to individual who has disobeyed, but to all the individuals in like case with him who may hereafter fear to disobey by reason of his suffering. The welfare of society not on what happens to those convicted of crime, but on what happens as a result of their conviction and chastisement, to its innocent members.[35] The contemporary relevance of pardoning power can be very well explained in the words of Mr. Justice Holmes:

“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”[36]

So it is not just a power vested to the highest authority but related to the ideals of the welfare society, where law is not only about punishments but about the change in society when everyone obey law.

It is agreed that now courts itself provides a wide range of ways to a person. But still the idiosyncrasies of the humans are so vest and diverse that we cannot idealize that any lawgiver or judges, however wise, will definitely meet the end which is thought to achieve by the punishments. This makes not just the relevance of the pardoning power in the contemporary world, but a necessity, for the exceptional cases. So let us always have some person or one man, one with no “ifs” and “buts” to qualify this responsibility.

CONCLUSION

There had a substantial evolution in the pardoning power in India by the apex court. Giving the consideration of public welfare to decide on the matter of mercy petition, to some extent left minimum space to the president to use its power to pardon but this lessen the scope of the gross misuse of power by the President, Governor as the case maybe, on the basis of political influence. So having both aspects in the mind we cannot say the consideration of public welfare while deciding the petition is only good or only bad. This has both sides.

Now coming to the judicial review it is clear law that the courts can review the decision of the President or the Governor, which will create a system of check on the misuse of power and prevent the political favoritism. Also judicial review is only tool nowadays by which a person can have justice from the insanity of other organs of government.

This system of review creates a cyclic structure as person exhausted all the rights under judiciary files for mercy petition but than again have to go to judiciary if there also injustice with him by the Executive. The grounds for the decision of President to be reviewed are kept to be very limited. Letting a window for the discretion of the President, but it is necessary as if democratic governance is not combined with the firm governance, we shall have no one except overselves to blame for lawlessness, which would one feel for not getting proper process or hear while dispassion of his mercy petition or when there is totally abuse of the pardoning power.

REFERENCES

Cases

Bachan Singh v. State of Punjab  (1980) 2 SCC 684

Biddle v. Perovich, 274 U.S. 480, 486 (1927)

Devender Pal Singh Bhullar v. State (NCT) of Delhi, (2013) 6 SCC 195

Ediga Anamma v. State of A.P., (1974) 4 SCC 443

Epuru Sudhakar v. Govt of A.P, AIR 2006 SC 3385

G Krishna Goud v. State of Andhra Pradesh, SLP (Crl) No. 840 of 1975

Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257

Kehar Singh v. Union of India , (1989) 1 SCC 204

Kehar Singh v. Union of India, (1989) 1 SCC 204

Kuljeet Singh v. Lt. Governor, (1982) 1 SCC 417

Maru Ram v. UOI, AIR 1980 SC 2147

Re Maddela Yera Channugadu, ILR (1955) Mad 92

State of Punjab v. Joginder Singh, (1963) AIR 913, (1963) SCR Supl. (2) 169

State v. K.M. Nanavati, 62 Bom. LR 383, ¶12 (1960)

State v. Padma Kanta Malviya, AIR 1954 All 523

T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68

Triveniben v. State of Gujarat, (1988) 4 SCC 574

Legal Brief

WP (crl) No.284-285/2006,Written submission of senior counsel, Soli Sorabiee as Amicus curiae, at.5 in Epuru Sudhakar v. Govt. of A. P

Constitutional Provisions

Constitution of the United States of America, Article 2 § 2

The Constitution of India, 1950

Books

H.M.Seervai, The Constitution of India,Vol. 2, 4th Edi, 2006

Websites

http://www.ebc-india.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power_to_

Articles

Charles J. Bonaparte, The Pardoning Power, The Yale Law Journal, Vol. 19, No. 8 (Jun., 1910), pp. 603-608

J.P. Rai, “Exercise of Pardoning Power in India: Emerging Challenges”, The NEHU Journal, Vol XII, No. 2, July – December 2014, pp. 1-26

Rohan Sahai, Limits of the Pardoning Power under the Indian Constitution, 2 NUJS L Rev 283 (2009)

Constitution

Constitution of the United States of America

The Constitution of India

Reports

Report on Capital Punishment, 317-18 (1967)

FOOTNOTES

[1] The Constitution of India, 1950.

[2] Id.

[3] H.M.Seervai, The Constitution of India,Vol. 2, 4th Edi, 2006,pp.2094.

[4] http://www.ebc-india.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power_to_

Pardon case.,pdf (visited on 26.05.2020).

[5] Report on Capital Punishment, 317-18 (1967).

[6] Kehar Singh v. Union of India , (1989) 1 SCC 204.

[7] Kuljeet Singh v. Lt. Governor, (1982) 1 SCC 417.

[8] Bachan Singh v. State of Punjab  (1980) 2 SCC 684.

[9] Maru Ram v. UOI, AIR 1980 SC 2147.

[10] MP Jain, Indian Constitutional Law, 8th edition , Lexis Nexis (2018).

[11] Ediga Anamma v. State of A.P., (1974) 4 SCC 443.

[12] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

[13] Triveniben v. State of Gujarat, (1988) 4 SCC 574.

[14] J.P. Rai, “Exercise of Pardoning Power in India: Emerging Challenges”, The NEHU Journal, Vol XII, No. 2, July – December 2014, pp. 1-26.

[15] Devender Pal Singh Bhullar v. State (NCT) of Delhi, (2013) 6 SCC 195.

[16] Kehar Singh v. Union of India, (1989) 1 SCC 204.

[17] State of Punjab v. Joginder Singh, (1963) AIR 913, (1963) SCR Supl. (2) 169.

[18] WP (crl) No.284-285/2006,Written submission of senior counsel, Soli Sorabiee as Amicus curiae, at.5 in Epuru Sudhakar v. Govt. of A. P.

[19] Epuru Sudhakar v. Govt of A.P, AIR 2006 SC 3385.

[20] Rohan Sahai, Limits of the Pardoning Power under the Indian Constitution, 2 NUJS L Rev 283 (2009).

[21] State v. Padma Kanta Malviya, AIR 1954 All 523.

[22]  Kehar Singh v. Union of India, (1989) 1 SCC 204.

[23] Id.

[24] Re Maddela Yera Channugadu, ILR (1955) Mad 92.

[25] ILR Mad 92, ¶12 (1955).

[26] State of Maharashtra v. K.M. Nanavati, 62 Bom. LR 383, ¶12 (1960).

[27] Constitution of the United States of America, Article 2 § 2.

[28] Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257.

[29] Supra Note 14.

[30] G Krishna Goud v. State of Andhra Pradesh, SLP (Crl) No. 840 of 1975.

[31] Maru Ram v. UOI, AIR 1980 SC 2147.

[32] Kehar Singh v. Union of India, (1989) 1 SCC 204.

[33] Supra Note, 10.

[34] WP (crl.)  284-285 of 2005.

[35] Charles J. Bonaparte, The Pardoning Power, The Yale Law Journal, Vol. 19, No. 8 (Jun., 1910), pp. 603-608.

[36] Biddle v. Perovich, 274 U.S. 480, 486 (1927).


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