This article has been written by Mr. Ashish Abhisek, a 3rd year BA.LLB Student from KIIT School Of Law.

Introduction 

No legal system is flawless, but the ability to grant pardon is a necessary component. If there are severe injustices that must be rectified, either on the basis of the facts themselves or due to the unintended application of the criminal laws, the pardon is the tool of compassion that may accomplish so. A benevolent act of the ruling authority, a pardon reduces the penalty required by law for a crime and reinstates any civil liberties that were taken away as a result of the violation. It’s also a righteous deed sanctioned by law. It may be bestowed either by a secular monarch or president, or by a bishop or other high-ranking religious official. It has repercussions for the offender’s guilt and the penalty that may be imposed. The administration still has unrestricted pardon authority and considerable leeway in using it. And for as long as anybody can remember, the ability to grant pardons has been used less as an act of mercy and more as a means to advance one’s financial and political standing. The pardon was misused for monetary benefit from the very beginning. The Indian judicial system has not been helped by the absence of rules or limitations on the use of the mercy authority. This ethical use of the mercy authority is especially important in the current political atmosphere. An increasing number of death sentence cases are being considered for mercy as a consequence of stricter sentencing requirements and rising public opinion in favour of capital punishment.

Among the sovereign’s powers in England is the discretionary ability to grant clemency. According to Sir William Blackstone, “that particular pre-eminence which the King has over and above all the other individuals, and out of the regular process of the common law, in due to his royal dignity” is what is often meant by the term “prerogative.” Therefore, the British Crown’s ability to grant pardons was a privilege bestowed as a kind act of justice. The Indian people, via the Constitution, have given the President and the Governor the authority to grant pardons—not as a gesture of goodwill, but as a matter of law. 8 Given that the authority in question would be derived from, exercised within, and subject to the provisions of the Constitution, it is imperative that we investigate the Constitution’s original intent.

A brief historical background

Truthfully, the Indian Constitution’s protection of the right to pardon may be traced back to the British practise of clemency. Historically, granting compassion has been the exclusive purview of the king, who does it on the recommendation of the Home Secretary. The cornerstone for this practise is the concept that the sovereign has the divine right and may, therefore, use this prerogative on the basis of divine benevolence. According to the country’s constitution, the President of India serves as its Head of State, but under the British system, the monarch is the Head of State. Therefore, he, together with the Governors of the individual states, has the power to pardon pardons. The English concept of pardon serves as the basis for Section 2, Clause 1 of the United States Constitution, which vests the pardoning power in the President of the United States. The term “pardon” in the United States Constitution has the same meaning as it had in England, as has been repeatedly reaffirmed by the Supreme Court of the United States.

Adeia was a procedure in ancient Rome that allowed for the democratic pardon of prominent persons (such as athletes, orators, and politicians) who received the support of at least 6,000 voters in a secret ballot. This occurred about 403 B.C. The ancient idea of Adeia has striking parallels to the modern practise of pardon, which often takes into account considerations such as public opinion in respect to the person sought to be pardoned. However, the source of this authority to pardon was not an executive prerogative. Ancient Romans used a procedure similar to the power of pardon wherein they would execute every tenth convicted troop member rather than the whole army for serious offences. It’s more difficult to draw similarities between this practise and the present practise since it’s not obvious whether compassion was the intended purpose, and because the motivations for carrying out such a practise seem to be mostly political. The result, however, seems to be the same as the result of pardoning accused persons in the current day: the individual is found guilty and sentenced to a penalty, but the punishment itself is never carried out.

Constitutional debate behind the same

It was suggested by Tajamul Hussain that Clause 3 of the Article 59 be removed. Article 59(3) reads “Nothing in sub-clause (c) of clause (1) of this article shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or the Ruler of the State under any law for the time being in force”. According to him, the Clause violated the spirit of the Draft Constitution, which was based on the concepts of federalism and the allocation of powers and embodied a strong central government that was established after the split. He went on to say that, like the President of the United States, the President of India should be the “Supreme authority” when it comes to crimes committed under federal subjects and should be granted unique, extraordinary jurisdiction. A provincial Governor would be in a better position to exercise extraordinary powers because he would have more knowledge about the case because it would involve his state, but R.K. Sidhwa disagreed with Hussain’s amendment because he thought it was crucial for the Governor to also have extraordinary powers over offences under federal subject.

Further, Sidhwa maintained that even if the application for mercy etc. went straight to the President, the President would still speak with the Governor first. Sidhwa concluded by adding that the Governor’s use of exceptional powers will be monitored by his legislature and, in the event of abuse, the President might also intervene. Third and last speaker B.R. Ambedkar agreed with Sidhwa’s points. He emphasised that if a condemned person’s mercy plea were to be denied by, say, the Governor, the convicted person’s “final chance” would be with the President. Draft Article 51 was put to a vote at Ambedkar’s urging. The Assembly voted against Hussain’s proposal and passed the Draft Article as a result. A little over a year later, however, the Assembly once again picked up the Draft Article. T.T. Krishnamachari proposed a change to Sub-Clause 2 on October 17th, 1949. (Clause 1). According to Krishnamchari, the modification was made so that the President’s exceptional powers would apply to offences committed in concurrent subjects. An amendment proposed by Krishnamachari was approved by the Assembly.

Pardoning power in India

The power to grant a pardon is included in India’s Constitution. The President of India and the Governors of the States each have authority under Articles.72 and 161 of the Constitution of India. Given the wording of Articles 72 and 161 of the Indian Constitution, it is clear that the founders of India wanted to give the President and the Governors the same pardoning authority in nature and effect as the Sovereign in Britain and the President in the United States, at least within the scope of their respective offices. Consequently, in India, the authority to pardon may be used at any point, including before, during, and after a trial. Any combination of complete, restricted, or conditional may be used to describe a pardon.

 (i) A full pardon removes all legal repercussions of the offence, including the conviction and the sentence, and (ii)releases the guilty individual from the need to serve any remaining time on their sentence or pay any outstanding fines.

(ii) A pardon is conditional if it becomes effective only after a certain action is taken by the grantee or if it becomes null and invalid upon the occurrence of a certain event.

Article 72 of the Constitution gives that the President shall have the power to grant pardon, reprieve, respite or remission of punishment and to suspend, remit or commute the sentence of any person convicted of an offence in

 (a) a case tried by court-martial 

(b) a case relating to a law to which the executive power of the Union extends. 

c) A death penalty has been imposed. In accordance with Article 161, the Governor has the same and concurrent powers as the President in any cases involving the death penalty or laws over which the State’s executive branch has jurisdiction.

The President and Governor have the capacity to give pardons under the authority of these articles, however it is unclear whether or not they have unrestricted authority to do so due to the ambiguity of the term “Shall” in clause (1) of Article. It was also decided that the President and Governor, acting on the recommendation of the Council of Ministers, would be responsible for exercising the power of pardon.

Due to the inevitable fallibility of the court system, the ability to grant pardons serves to rectify any mistakes made by the judiciary. It is a feature of sovereignty, wherever it may be exercised, to pardon a prisoner whose sentence is too long or severe in relation to the crime committed. To remedy this problem, the government has delegated its authority to a non-restricted body. Though the president hadn’t been given the authority to grant pardons, the motto “Fiat justitia per eat mundus”— That justice should be done even if it means destroying the world, is as true now as it was then. Inadequate and lacking in political morality and that attribute of God whose judgements are always tempered with love, a society without such clemency power, to be utilised by any department or functionary of Government, would be most unjust.

Considering public welfare, which is the legitimate objective of all penalties, the pardoning authority is used on the grounds that suspension of the sentences would further public welfare just as effectively as execution of the sentences. Pardoning is an exercise of Executive authority that lies with the President and the Governors of the individual states. This is a significant authority that allows for a great deal of discretion. The use of pardoning authority is fraught with discretion, which cannot and should not be abolished. A key component of discretion is freedom of action. A person in a position of authority who has discretion is able to make decisions based on a variety of factors and, to some extent, on his or her own judgement. However, discretion does not mean making quick decisions, but rather having keen perception.

Simply reading these clauses reveals that they are silent on the criteria that the President and the Governor must use when deciding whether or not to pardon an individual. Since the ability to grant a pardon has always been seen as a privileged position, it is plausible to conclude that this silence was on purpose. It’s important to take a look at how this executive power interacts with the duties of the legislature and the courts to see whether there are any potential conflicts. This interpretation appears to be at odds with the original intent of the Constitution, even though it is not clear from the wording of the Constitution that the authors intended for the President and Governors to be bound by the recommendation of the Council of Ministers when using their pardoning powers. Samsher Singh v. State of Punjab, decided by a seven-judge bench of the Supreme Court, established that the satisfaction of the President or the Governor required by the Constitution is not their own satisfaction but rather the satisfaction of the Council of Ministers with whose aid and advice the President and the Governor exercise their powers and functions. The Supreme Court of India ruled in the case of Maru Ram v. Union of India that the President and the Governors cannot use their own discretion while carrying out the responsibilities described in Articles 72 and 161, respectively. This Hon’ble Court has reaffirmed this legal stance in the matter of Kehar Singh v. Union of India.

The pardoning powers of the president and the governors have been interpreted by the courts to require them to follow the recommendation of the council of ministers. This handicaps the Constitution’s ultimate authority and limits its discretionary power. However, the issue of what to do if the Council of Ministers gives forth unconstitutional advice arose. Case in point: Kehar Singh, the accused in respect to whom pardon was requested, was the killer of Ms. Indira Gandhi, a former Prime Minister of India. One cannot rule out the potential of bias or lack of impartiality on the side of the advice provided by the Council of Ministers if it is made up of ministers from the same political party as the previous Prime Minister. Also, in this age of coalition governments, it is possible that the advise presented to the Council of Ministers may be based only on political considerations rather than a “true, just, fair, and unbiased view.”

Generally speaking, the court has been hesitant to set guidelines on the administration for using the authority to pardon under Article 72. However, there have been some notable exceptions. The Supreme Court said in Kuljit Singh v. Lt. Governor of Delhi that the pardoning authority of the President is a good power that should be employed ‘as the fairness of a case may demand,’ and that it is not desirable to restrict it by judicially-evolved limits. The Supreme Court ruled in Kehar Singh that Article 72’s discretionary powers must be interpreted broadly, without the Court itself establishing any type of rules or regulations. The Court went on to clarify that pardons might be issued to fix judicial mistakes or for “reasons of state.” The fact that this authority in India rests with the President and the Governors rather than the Prime Minister and the legislature suggests that it was done on purpose to avoid subjecting pardons to a vote of the people. In the case of Maru Ram, it was ruled that legislative provisions such sections 432-433 and 433-A of the Criminal Procedure Code do not limit the constitutional authority under Article 72 and Article 161, and that the power under those articles cannot be amended, modified, or interfered with in any way. The President “acts on a completely different level than that on which the Court functioned.” He exercises authority granted by the Constitution, which is distinct from and not an extension of the power of the courts.

While exercising his authority under Article 72, the President is free to discuss the merits of the case at length, even if the Supreme Court has already reached a ruling on the matter. By using his authority under Article 72, the President may review the criminal case’s evidence and decide for himself whether or not to issue a pardon. Looking at the facts in the criminal case from a different perspective may lead him to a different conclusion than the Court did about the accused’s guilt and the punishment that was handed down. Because of this, the judicial record has not been altered or changed in any way, nor has it been superseded by the President’s action. Consequently, the judicial system is not hampered in any way.

Conclusion

The underlying contention in this set of cases is that the pardon Power granted to the President of the United States by the Constitution of the United States is vastly expanded compared to that granted to the Crown in the United Kingdom by the same document. Although contemporary political notions such as the Rule of Law and Separation of Powers were observed to limit the ability of the Crown to pardon even in England, the Constitution of India imposes even more stringent constraints. Articles 72 and 161 provide a comprehensive definition of the Pardoning Power, which may serve as proof of this.

The Executive’s ability to grant pardons is crucial because it allows it to redress judicial mistakes. It nullifies a conviction without deciding whether or not the accused was really guilty. It’s easier to issue a pardon, but the government’s slow pace and political factors mean that mercy pleas can go unanswered for months. Therefore, the legislation of pardoning has to be changed immediately to ensure that clemency requests are dealt with in a timely manner. There has to be a deadline by which pardon requests must be decided. To avoid causing unnecessary stress for the applicant and his loved ones and to avoid a backlog of cases, the executive should be given a deadline by which to make a decision. The clemency authority has the potential to be honed into a principled tool for addressing systemic issues in our prison system. A neutral, knowledgeable panel should be formed and charged with investigating and reporting on alternatives to incarceration that serve the interests of justice.

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