POWER OF PARDON IN INDIA

October 11, 2021

We are aware that President of India is the Head of Indian Republic. The President of India has been conferred with some extraordinary powers such as to grant pardon. According to the Constitution of India it is not only the President who can exercise this power but the Governors of the respective states are also empowered to exercise such right. The Constitution of India vests sovereign powers in the President and Governors. Article 72 and Article 161 has empowered the President and the Governors of the concerned state to deliver justice or show some mercy if the punishment seems to be harsh. On the emotional grounds an accused can be shown mercy by reducing the punishment if the respective authorities deem to be fit for it.

ARTICLE 72 OF THE INDIAN CONSTITUTION:

President shall have the power to grant pardons, reprieves, respites or remissions of punishment to suspend, remit or commute the sentence of any person convicted for any offence. Particularly, in cases of capital punishment the President or the Governor exercises the right to grant pardon. The pardoning powers of the Indian President are explained in Article 72 of the Indian Constitution. Different types of pardoning are:

Pardon: It means completely forgive the person for the crime committed and liberate him. The pardoned criminal will lead a normal life like other citizens in India.
Commutation: It means changing the type of punishment given to the guilty into a less severe one. For example, a death penalty is commutated into a life imprisonment.
Reprieve: It means delay allowed in the execution of a sentence, in case of death sentence. For example, a guilty person has the privileged with some time to apply for presidential pardon or some other legal remedy to prove his innocence.
Respite: It means reducing the degree of the punishment to a criminal in view of some special circumstances such as pregnancy, mental condition etc
Remission: It means reduction of the sentence without changing its nature. For example, reduction of 20 years rigorous imprisonment to 10 years.

Since, no power can be absolute in nature. Therefore, the power of the President of India under Article 72 of the Constitution, to issue orders of pardon, reprieve, respite, commutation, remission is subject to certain restrictions. It is governed by the advice of the Council of Ministers. The above article clearly specifies the areas in which this power can be exercised. In Maru Ram vs Union of India[1], the Constitutional Bench of Supreme Court held that 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 advice of the Government binds the head of the Republic.

ARTICLE 161 OF INDIAN CONSTITUTION:

Just like President of India the Governor of the state concerned vested with same power to grant pardons, reprieve, respites or remissions etc. the meaning and effect of the exercise of these powers is also the same. It can be issued by the Governor only in cases of violation of any law relating to a matter to which the executive power of the state extends[2]. But, the Article 161 doesn’t confer upon the governor to grant pardon in case of capital punishment. The power to grant pardon in case of a death sentence is exercisable by the President himself.

CONCLUSION:

The Constitution doesn’t provide for any mechanism to question the legality of the decisions undertaken by President or Governors regarding mercy jurisdiction. The scope of pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power of the President to grant pardon extends in cases where the punishment or death sentence but Article 161 doesn’t provide any such power to the Governor. The President can grant pardon in all cases where the sentence given is sentence to death but pardoning power of governor doesn’t extend to death sentence cases. The main objective to grant pardon is to save an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction. It is done to correct judicial errors, as no judicial administration is free from imperfections. Pardoning power should be subjected to limited judicial review so that the power provided not misused by the executive authorities.

REFERENCES:

[1] (1981) 1 SCC 107

[2] Swaran Singh vs State of U.P & Ors on 5 Mar, 1998

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October 11, 2021