Balancing Justice and Mercy: The President's Pardoning Power in India

I. Introduction

The power of pardon is an important component of executive powers, which allows the President to intervene and grant pardon, as a way of “dispensing the mercy of government” in exceptional cases where the legal system fails to deliver a morally or politically acceptable result. It exists to protect citizens against possible miscarriage of justice, occasioned by wrongful conviction or excessive punishment. Nevertheless, in recent times, this power has, in practice, become a personal prerogative of the President, a remnant of tribal kingship generally reserved for the well-heeled or well connected. The power of pardon is virtually unfettered and unchecked by formal constraints in most jurisdictions, thereby rendering it susceptible to abuse. However, in some jurisdiction there are conventionally specified criteria which guide the grant of pardon. The pardoning power is the most sacred and difficult of all executive functions. Though it is regarded as a prerogative, based solely on presidential or executive discretion, there ought to be checks and guiding principles to avoid injustice in the quest for equity. By that, public interest shall be better served, reform of the prisoners more attained and welfare of the family and community advanced by a liberal but discrete use of the pardoning power. Ultimately, the ability of the President to use the pardon power fairly and dispassionately will, to a large extent, depend on his personal integrity and sense of responsibility.

II. Power of president to grant pardons etc

The relevant constitutional provisions regarding the grant of pardon, remissions, suspension of sentence, etc. by the President of India and the Governor of a State are as follows:

Article 72- Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases –

(1) The President shall have 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 –

(a) In all cases where the punishment or sentence is by a Court Martial;

(b) 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;

(c) In all cases where the sentence is a sentence of death.

(2) 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 passed by a Court martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” Article 161 Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases –

The Governor of a State shall have 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 relating to a matter to which the executive power of the State extends.”

The provision corresponding to Article 72 in the Government of India Act 1935 was section 295 which read as follows:

(1) Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission of commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the province. Provided that nothing in this sub-section affects any powers of any officer of His Majesty’s forces to suspend, remit or commute a sentence passed by a court-martial.

(2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.

There was no provision in the Government of India Act 1935 corresponding to Article 161 of the Constitution. The above constitutional provisions were debated in the Constituent Assembly on 29th December 1948 and 17th September 1949.

In the Constitution of India, the power of Presidential Pardon is found in Article 72. It empowers the President to grant pardons, reprieves, respites or remissions of punishment in all cases where the punishment is for an offense against any law to which the executive power of the union extends. The same is also available against sentences of courts-martial and sentences of death. A parallel power is given to the Governor of a state under Article 161 of the Indian Constitution. A pardon may be absolute or conditional.

The power of pardon under Article 72 was reviewed in the two landmark cases of Maru Ram vs Union of India and Kehar Singh Vs Union of India. In Maru Ram the Court while deciding upon the validity of 433A of the Code of Criminal Procedure examined the power of pardon under Article 72. It observed:

“Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favoritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise…. For example, if the Chief Minister of a State releases everyone in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive.”

In addition to the above constitutional provisions the Criminal Procedure Code 1973 provides for power to suspend or remit sentences – Section 432 and the power to commute sentence.

In Kehar Singh the Court considered the nature of the President’s power under Article 72 while dealing with a petition challenging the President’s rejection of a mercy petition by Indira Gandhi’s assassin, Kehar Singh. The Court explicitly held in that Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. ‟ However, the Court qualified this finding by holding that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram. What are these limitations? Considerations that are arbitrary or „wholly irrelevant, irrational, discriminatory or mala fide. ‟ However, in Kehar Singh the Court declined to lay down guidelines for the exercise of the power under Article, stating that there is sufficient indication in the terms of Art.72 and in the history of the power enshrined in that provision as well as existing case law.

The decisions in Maru Ram Kehar Singh still hold the field and thus the present position is that Presidential Pardon under Article 72 is subject to judicial review.

Judicial decisions, legal text books, reports of Law Commission, academic writings and statements of administrators and people in public life reveal that the following considerations have been regarded as relevant and legitimate for the exercise of the power of pardon. Some of the illustrative considerations are:

(a) interest of society and the convict;

(b) the period of imprisonment undergone and the remaining period;

(c) seriousness and relative recentness of the offence;

(d) the age of the prisoner and the reasonable expectation of his longevity;

(e) the health of the prisoner especially any serious illness from which he may be suffering;

(f) good prison record;

(g) post-conviction conduct, character and reputation;

(h) remorse and atonement;

(i) deference to public opinion.

Thus, in these judgments concerning the President’s exercise of pardon, the Court seems to have widened the grounds for judicial review by enumerating specific grounds on which the grant of pardon can be considered arbitrary. Among these are non-consideration of relevant factors such as length of the sentence already undergone, the prisoner’s behavior and involvement in other crimes and consideration of extraneous or irrelevant grounds such as political affiliation.

(A) Referring to the case of: Devender Pal Singh Bhullar vs State (NCT of Delhi)

After obtaining the degree of Bachelor of Engineering from Guru Nanak Engineering College, Ludhiana in 1990, the petitioner joined as a teacher in the same college. He was suspected to be involved in the terrorist activities in Punjab and it is said that he was responsible for an attempt made on the life of Shri Sumedh Singh Saini, the then Senior Superintendent of Police, Chandigarh on 29.8.1991. Shri Saini’s car was blasted by remote control resulting in the death of some of his security guards. The petitioner was also suspected to be responsible for an attack on the car cavalcade of the then President of Youth Congress Maninderjit Singh Bitta, in Delhi on 10.9.1993. As a result of the blast caused by using 40 kgs. RDX, 9 persons were killed and 17 were injured. Apprehending his arrest and possible elimination by the police as is alleged to have been done in the case of his father, uncle and friend Balwant Singh Multani, the petitioner decided to go to Canada. However, on the basis of information supplied by the Indian authorities, he was taken into custody at Frankfurt Airport and deported to India. He was charged with offences under Sections 419, 420, 468 and 471 IPC, Section 12 of the Passports Act, 1967 and Sections 2, 3 and 4 TADA. The designated Court, Delhi found him guilty and sentenced him to death. The appeal filed by him was dismissed by this Court vide judgment titled Devender Pal Singh v. State (NCT of Delhi), (2002) 5 SCC 234. The review petition filed by the petitioner was also dismissed by this Court vide order dated 17.12.2002.

III. Conclusion

A worrying trend is respect of the Presidents power of pardon is the growing tendency of successive Presidents to disregard the advice of the Council of Ministers in the exercise of this power. Former President A.P.J. Abdul Kalam inherited 12 pending mercy petitions from his predecessor which grew to 20 in his tenure. Despite recommendations for rejection of the same by the Home Ministry, he rejected only 1 petition in his 5-year tenure – that of Dhananjay Chatterjee’s case whose mercy petition had already been rejected by two former Presidents, Shankar Dayal Sharma and K.R. Narayan. The Supreme Court has held in Maru Ram and Kehar Singh that the power under Articles 72 and 161 of the Constitution is to be exercised by the Central and the State Governments and not by the President or Governor on their own. A move by successive Presidents to act on their own jeopardizes the Constitutional scheme and the Court may soon be called upon to decide whether such action furnishes an additional ground for judicial review.

If in a given case where public welfare and the welfare of the convict require, rather necessitate that pardon be given, non-grant of pardon would tantamount to failure to perform duty and obligation in article 72 and 161. For example, suppose if a convict has substantially served 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, then in such a situation, the non-grant of pardon would amount to a failure to perform duty and obligation in article 72 and 161.

Ultimately, the ability of the President to use the pardon power fairly and dispassionately will, to a large extent, depend on his personal integrity and sense of responsibility. While the President should be allowed wide latitude in the exercise of his power of pardon, the prescription of some guidelines for granting pardon, as obtainable in India and South Africa, is also desirable. This, of course, cannot prevent the abuse of presidential pardon power, but it would go a long way in curbing the incidence of abuse.

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IV. References

1. The Constitution of India

2. 1988 SCR Supl. (3)1102

3. MANU/SC/0364/2013 Devender Pal Singh Bhullar vs. State of N.C.T. of Delhi (12.04.2013 - SC): MANU/SC/0364/2013

4. (2013) 6 SCC 195

5. 1980 INSC 212,- Maru Ram and Ors. vs. Union of India (UOI) and Ors. (11.11.1980 – SC): MANU/SC/0159/1980

6. D. D Basu, Indian Constitution

7. 1988 INSC 368; Kehar Singh and Ors. vs. Union of India (UOI) and Ors. (16.12.1988 - SC): MANU/SC/0240/1988.

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Footnotes

1. Author is a student at School of Law, UPES, Dehradun, India.