Power of pardon
“I have always found that mercy bears richer fruits than strict justice.”
Abraham Lincoln, 16th U.S President
Mercy is God’s grace, a gift to the mankind which gives all an equal chance to mend ways and to correct a deviant behaviour. This might be why every civilised state has had a provision to pardon offenders in their criminal justice system to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some functionary of the government a country would be most imperfect and deficient in its political morality.
Justice Holmes of US Supreme Court has said that pardon as of today is not an act of grace but is a constitutional scheme which when granted is determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgement fixed. Montesquieu believed in significance of clemency in the monarchical system.
Before the Constitution came into force, the law of pardon in India was the same as the one in England since the sovereign of England was the sovereign of India. From 1935 onwards, the law of pardon was contained in Section 295 of the Government of India Act which did not limit the power of the Sovereign. The result was up to the coming into force of the Constitution, the ‘exercise of the King’s prerogative was plenary, unfettered and exercisable as hitherto.
In the Constitution of India, the power of Presidential Pardon is found in “Article 72” of the Indian Constitution. 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. A pardon may be absolute or conditional. It may be exercised at any time either before legal proceedings are taken or during their pendency or after conviction. The rejection of one clemency petition does not exhaust the pardoning power of the President.
This power is practically similar to that in American or Britain. The American President has power to grant reprieves and pardons for offences committed against the Union States expect in case of impeachment. In Britain, the Crown enjoys a prerogative to grant a pardon to any criminal; but the prerogative is exercised on ministerial advice.
U.S.A. - Art. 2 Sec. 2(1) of the Constitution says: “he (the President) shall have the power to gram reprieves and pardons for offences against the United States except in case of impeachment.” This is called the judicial power of the President.
According to Art 72, the President can pardon to anyone. But in Maru Ram v. Union of India, the Supreme Court has considered the question whether there should be some guidelines for the exercise of power of pardon by the President. In Maru Ram, the Court expressed a view in favour of laying down some guidelines for the purpose of exercising power under Art.72 in order to avoid any allegation of arbitrary exercise of power.
The matter again cropped up before the Court in Kuljeet Singh v. Lt. Governor, in a writ petition, it was argued before the Supreme Court that under Art. 72, President’s power is coupled with a duty and that it must be exercised fairly and reasonably. Has the Government formulated any uniform standard or guidelines by which the exercise of the constitutional power under Art. 72 are intended to be or are in fact governed? The Court said the question was of far-reaching importance and that it was necessary that it be examined with care.
Therefore, kehar Singh’s son filed a writ petition in the Delhi High Court seeking an order restraining the Central Government from executing the death sentence on Kehar Sing. On this petition being dismissed by the High Court, a special leave appeal under Art. 136 were filed in the Supreme Court. A Bench of five judges considered the matter and the judgement of the Court was delivered by PATHAK, C.J.
His most significant question considered by the Court was: To what areas does the President’s power to scrutinise evidence extend in exercising his power to pardon? On this question, again, the Court exhibited the most liberal view. The Court expressed the view that it is open to the President in the exercise of the pardon power vested in him by Article 72 ‘to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to the guild of, and sentence imposed on, the accused”. Explaining the matter, the Court observed.
The government sought to answer yes or no to the questions implicit in each guideline while determining whether any of the seven grounds applied to a petition. These grounds are as follows:
1.Personality of the convict (such as age, sex, or mental deficiency) or circumstances of the case (such as provocation or similar justification). Thus, if the convict was very young, or a woman, or a mentally challenged person, or if the offence was committed under distress, these were considered as relevant factors for the grant of clemency.
2. Has the appellate court expressed doubt on the reliability of evidence but has nevertheless decided on conviction?
3. Is it alleged that fresh evidence is obtainable, mainly with a view to seeing whether a fresh inquiry is justified?
4. Has the High Court, on appeal, reversed an acquittal or has it, on appeal, enhanced the sentence?
5.Is there any difference of opinion in the Bench of High Court judges, necessitating reference to a third judge?
6.Was the evidence duly considered in fixing responsibility, if it was a gang murder case?
7.Were there long delays in the investigation and the trial? Or remit the sentence imposed on him”.
The biggest question which could be laid down against the conception of Judicial Review of the power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if president grants pardon on some moral & humanitarian ground whether in that case if judicial review is done then how come a judiciary would close its eyes from the previous judgments which it has given right from the lower courts against the pleader. It is more or less clear that it would revoke the pardon & would revert back to its final decision. As per my view the judiciary when given a chance to review a pardon should not go by the legal circumstances but it should deal with the moral values.
Questions are now arising on several clemency decisions given by various US Presidents. Amongst which most of them are given by Bill Clinton. Bill Clinton granted about 395 pardons during his presidency amongst which 140 were issued on his final day in his office. It could be clearly seen that pardon power could be misused. House judiciary Committee which was hearing into the decision to commute the sentence of former White House aide I. Lewis “Scooter” Libby has said that it would review all the previous pardon given by various presidents.
Thus when the President’s Absolute power to grant a pardon can be brought under judicial review then why can’t the power granted to Indian President be reviewed. Justice Bhagwati in National Textiles Workers Union v P.R. Ramakrishna said “Law cannot stand still; it must change with the changing social concepts and values. Law constantly is on the move adapting itself to the fast-changing society and not lag behind.”
(1981) 1 SCC 107
AIR 1981 SC 2239