INTRODUCTION

The power of the executive to grant clemency is uniform in almost all democratic countries
and India is no exception to it. However, debate on exercising of such power was still
continuing and interpretations by the Judiciary continues to ignite such debates.These are
debates range from reforming procedure of exercising the power to abolish such a power
vested with the executive.
In such a scenario a closer look at exercising such power demands attention due to the fact
that the death penalty could be awarded only in rarest of rare cases in India. Despite the laws
prescribe the death penalty the actual number of executions or hangings carried out in India
has reduced to a trickle in the past decade. For example in the past decade (2000?2010) only
one judicial execution has been carried out. But recently in 2013 this trend has been changed
and till now two executions has already carried out. The ironical situation is that the
implication of the provisions of pardoning or mercy or clemency is not uniform. Present day
mercy provisions in India can therefore be best seen as a layer of remedial justice in the
hands of the executive. The clemency jurisdiction also provides for extensive interplay
between the executive and the courts.
The question becomes remarkable when threat is experienced in our country because of a
serious act, known as terrorism and which the biggest threat for our sovereign democracy is
also. Lack of effective criminal administration and delay in disposing of the cases of death
penalty, undermines the very purpose of such penalty. India is a sovereign country believes in
Justice, Equity and Good Conscience gives the option of mercy petition to a person who is
considered as human, so that they may be benefited by the power of pardon. However such a
beneficial provision had a potential to be misused. Keeping in this mind this paper addresses
various issued relating to the power of granting pardon in cases of death penalty.
The first chapter depicts the historical development of the pardoning power. It emanates the
source of the origin of the pardon power and the need of this prerogative in the administration
of the criminal justice system. It also explains the reasoning behind the existence of the so
called prerogative power of the sovereign, which now has turned this power under the
constitutional scheme of almost all the countries around the globe. It also deals with the
contemporary importance of the pardoning power and pardoning power of other
constitutions. The second chapter of the research paper extensively looks into the concept of
clemency and its structure in India. Further it focuses on relation of power to pardon and the
theory of separation of powers. The third part deals with the judicial review of mercy
petition. The last chapter deals with the recent trends in execution of death sentence and
abuse of rule of law. As we can assert that the necessity of such power in todays time subject
to conditions and guidelines to be followed by the executive which have been framed by the
judiciary through the case laws, it would not be wrong to say that the power of pardon is an
indispensable element of all legal systems.

JURISPRUDENTIAL ASPECTS OF PARDON

Pardon is defined as "an executive action that mitigates or sets aside the punishment for a
crime." ? Blacks law Dictionary
Justice, liberty and equality particularly the equality are the hallmarks of the Indian
Constitution. Liberty is of course is the basic human right and when these three are coupled
together, it ensures that justice is done to all which was the aim of the founding fathers of
Indian Constitution.
Pardon is an act of mercy, forgiveness, clemency. [4] Sentence of Pardon means to exempt a
wrong? doer from the punishment awarded by Judiciary in accordance with law. This power
of exempting wrongdoer had been an exclusive right and privilege of a sovereign. It is the
private, through official acts of the executive, provided to the individual for whose benefit it
is intended and not communicated officially to the court. The official non?communication of
clemency power (to the court) is based on the maxim that it is the constituent part of the
judicial system that the judges see only with judicial eyes and nothing in respect of any
particular case of which he is not informed judicially. [5] So, the exercise of this power starts
when the judicial process comes to end.