Introduction

“A Pardon is an act of grace, proceeding from the power entrusted with the execution of
laws, which exempts the individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed”

In earlier times it was used by the Kings for their political gains, it helped them in generating
revenues. While now in the modern day understanding and use of pardoning power is more
often associated with notions of mercy and fairness, this analysis will demonstrate that it also
remains squarely in the political arena. Called pardons, amnesties, clemency, “grace”, or
mercy (as in Sweden), the pardon power is included in the written constitutions of nearly all
countries.

There are various reasons for the study of this area. The President’s power to pardon deals
with providing justice which is essentially a function of the judiciary. The reasons for this
interference of the executive in the functions of the judiciary have to be explored, understood
and appreciated because it is an obvious exception to the doctrine of separation of powers
which is one of the most eminent doctrines in the Constitution of India. The executive gives
an absolute power of pardon to the executive. The likelihood of abuse of such a power is
immense. Therefore, an analysis of case law with regard to presidential pardon is very
important. Pardon is a concept based on mercy, therefore, mercy as a concept has to be
studied and the question why mercy is vested with the executive and not with the judiciary
has to be looked into.

In the process of answering these questions the researcher also intends to look into some
other aspects of this power. One such aspect is to look into the wording of the Article. It is
very important to note the way the Courts interpret various Articles and what was the
intention behind framing such an Article. There are different ways in which an Article or a
Section can be interpreted. The importance of wording of Article and its interpretation can be
best understood by looking at Article 21 of the Constitution. The nature and scope of this
Article has changed drastically after the Court has started to look at the Article in a broader
manner. Similarly looking at this article’s words helps us to understand in a better manner. In
addition to this there are other issues as well like foreigners applying for pardon, judicial
review of pardon and the guidelines for exercise of pardon power. The researcher has made
an effort to discuss all these issues to get a complete understanding of the issue.

Constitutional Provisions:

Article 161 is the corresponding provision relating to the mercy jurisdiction of the President,

Article 72saysthat the Governor has the power to grant pardons etc., and 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 executive power of the state
extends to matters with respect to which the legislature of the State has the power to make
laws.
Article 72(1) of the Indian Constitution confers the power on the President to grant pardons
and commute sentences in the following cases:

 In all cases where the punishment or sentence is by a Court Martial.

 An 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.
 In all cases where the sentence is a sentence of death.

Article 72(1) says 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 passes by a Court Martial.

Reasons behind Pardoning Power:

The pardoning power is in derogation of the law. Implying that if laws could always be
enacted and administered so they would be just in every circumstance to which they are
applied, there would be no need for the pardoning power. Therefore, the power to pardon is
meant to be used in those circumstances where it would not be in the interest of justice to
strictly apply the law even if the circumstances call for the same. Executive clemency exists
to afford relief from undue severity or plain mistake in the operation or enforcement of the
criminal law. The administration of justice by the Courts is not necessarily always wise or
certainly understanding of circumstances, which may properly alleviate guilt. It is a check
entrusted to the Executive for special cases. A country would be most imperfect and deficient
in political morality without a power for clemency.

Wording of the Article:

It is very important to look at three words to understand the correct interpretation of the
article. These three words are ‘punishment’, ‘sentence’ and ‘offence’. The first two words
show that the pardon by the President will save a person from the consequences of an offence
and from a punishment as well. The researcher at first would like to look at the word
‘offence’. The manner in which it is used makes it quite evident that that the punishment and
sentence we spoke about are in respect of the offence committed. This implies that the
punishment which is supposed to be pardoned has to be in respect of an offence and not for
any simple breach of a condition.

The reasoning that is given for the above said statement is derived from the meaning of the
word offence as it is given in the General Clauses Act, 1897.It is difficult to say that the same
definition cannot be applied to Art.72 as well. It has been said that in reality it is this
definition only which is used in this Article. It is said that the power of pardon that has been
granted, can be used in following cases:

 In respect of an act which, in the eyes of law, is an offence

 Which offence is in respect of a matter over which the executive power of the Union
extends and,
 For which punishment has already been adjudged.

It is a well established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes
of the law. Thus if a person has not been given a chance of a fair trial or a proper
investigation has not been carried out against that person, then there is no reason why that
person should be given a pardon, because he is still innocent. Therefore, it is important to
note that the pardoning power can be exercised only in the case of a convicted person only.

However, in some of the cases the Court has said that the pardon can be granted even before
conviction or trial by a Court.This principle was laid down in the case of In Re: Maddela
Yerra Channugadu and Ors; it was said in the case,

“The pardon power includes not only that of granting absolute and unconditional pardons, but
also that of commuting a punishment to one of a different sort than that originally imposed
upon a person. It may be exercised at any time after the commission of an offence, either
before legal proceedings are begun or during their pendency, and either before or after
conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of
Bombay and and RamdeoChauhan v. State of Assam

Now let us look at another situation, if the trial of a person is held not by courts but by a
tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an
offence? The general situation will be that of non-compliance of the terms of a certain
contract and therefore, termination of the same. The answer would be no, as in such a case
the term, ‘breach of conditions’ is used and not the word offence. To be more precise, the
word offence can be used only in the case when the act done falls within the scope of the
word offence as it is defined in the Indian Penal Code. In addition to this it is important to
note that the person should be inquired under Code of Criminal Procedure, because if it is
done under an Act which does not characterize the act as an offence, then the word
punishment would not hold the same meaning as it is meant to be in Art.72. This issue has
been discussed in Maqbool Hussain v. State of Bombay.

The same issue was discussed in S.A. Venkataraman v. Union of India; the Court in this case
held that:

Before Article 20(2) could be invoked, it is essential that the earlier prosecution must have
been under the Act which created that offence. After looking at these two cases it is evident
that before the question of the exercise of the power of the President to grant pardons can
arise the person to whom pardon is granted must have been awarded punishment or sentenced
by a competent court of law or judicial tribunal.

Distinction between Pardon and Amnesty:

The issue that is discussed under this head is that whether there is a difference between
amnesty and pardon. Taking the situation of revolts, in such cases the head of the state makes
a proclamation that the rebels who surrender would be granted pardon and all their offences
will be omitted. Can we say here that the President has the power to do so under Art.72? If
we look at the situation more closely then we can see that irrespective of the words used by
the President in the proclamation actually does nothing more than giving a promise to the
rebels. Therefore, even if the word pardon has been used in the proclamation, in actual the
action of the head of the state does not amount to pardon from a punishment. The reason
being, at the time of the issue of declaration no person would have been awarded any
punishment. As said earlier that it is important to prove a person guilty before he can be
granted pardon, it is important to prove that a person has participated in a rebellion.
Therefore, before granting pardon it is important to prove in the Court that the person has
participated in the rebellion.

Pardon is granted to a specified individual while the promise not to take action on the rebels
surrendering arms is addressed to an unspecified body of rebels. Such an action therefore
may not be termed grant of pardon in the sense in which the expression is used in Art 72.
Thus the President does not have the power of granting amnesty to rebels. This power is
vested only with the Parliament. It is important to note that the power given under Art. 72 is
not unlimited, it is only in respect to the offences mentioned in the sub-clause (a), (b) and (c)
of clause 1 of the Article. The President can exercise his power only in respect of the subjects
to which the executive power of the union extends. Thus, it is clear that pardon and amnesty
differ in their import and therefore amnesty does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power:

There is a big question that whether the principles of natural justice be applied to Art. 72 and
Art.161. The researcher at first would look at the arguments favouring the application.
Though the power to grant pardon is executive, it is more quasi-judicial in nature. A quasi-
judicial body would impose a duty to act fairly. The Supreme Court has held that the
constitutional safeguard enshrined in Article 21 extends to the executive disposal of mercy
petitions. As a part of the constitutional scheme, Article 72 is subject to the discipline of
Article 21. Therefore, the accused should have a minimal right to fair hearing.

On the other hand there have been cases in which the Court has said against the application of
natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab that the
power of the government is executive in nature and the principles of natural justice cannot be
grafted thereon by means of judicial innovations and activism. Since the principles of natural
justice have been applied at each stage of the sentencing procedure, it may legitimately be
done away with at the executive stage.

Time Frame for the Exercise of Power:

Even in this area there is a debate as to whether we can have a time frame for the exercise of
the pardon power. The Supreme Court has taken both the stands and the researcher would
present both the view points. It has been observed by the Supreme Court that a period of
anguish and suffering is an inevitable consequence of sentence of death but a prolongation of
it beyond the time necessary for appeal and consideration of reprieve is not.

Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of
the view that delay in the decision of the President causes avoidable mental agony and
suffering to the convict. Therefore, to contain such unnecessary harm to the convict there
should be a time frame during which the executive has to give its decision.

Article 21 demands that any procedure, which takes away the life and liberty of persons, must
be reasonable, just and fair. This procedural fairness is required to be observed at every stage
and till the last breath of the life. If there has been an inordinate delay in the disposal of a
mercy petition then procedural fairness is vitiated and Article 21 is violated. Therefore, there
should be a time frame for the disposal of a mercy petition.
However, there is a different point of view as well. In this the Court has taken a different
stand from that taken by the Court in earlier cases. The time taken by the executive for
disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry
to be made. It may also depend upon the number of mercy petitions submitted by or on behalf
of the accused. Moreover, no fixed delay can be considered a fixed period. The court,
therefore, cannot prescribe a time limit for disposal even of mercy petitions.

The Case of Presidential Self-Pardons:

This is another issue which needs to be looked at, whether the executive has the power to
grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine
the public’s confidence in Presidency and the Constitution. It is also against the principles of
natural justice, that a person should judge himself. In the case of Calder v. Bull, the Supreme
Court expressed its view against allowing a person to be self-judge.

In one of his writings Madison wrote that, “No man is allowed to be a judge in his own cause,
because his interest would certainly bias his judgment, and not improbably, corrupt his
integrity.”

The same principle was followed later in the case of Spencer v. Lapsley in addition to these
judgments there has been various other cases which unanimously state the principle that no
man shall be judge in his own case. The case indicates that not only is this a venerable
principle of philosophy and history, it is an essential part of the structure of our constitutional
government.

Like other issues this one also has the other side of the argument where one can argue that
self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the
President has to act on the advice of the council of ministers while granting pardon. Now,
since the council of ministers can be tried and put on trial for a criminal offence the question,
which arises, is whether they can pardon themselves. Article 72 of the Constitution creates no
exception to the President’s power to pardon in order to invalidate self-pardons. Therefore,
theoretically, a self-pardon by the council of ministers is very well possible.

Foreigners and the Pardoning Power:

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of
Paragraph A of the “Procedure regarding petitions for mercy in death sentence cases.”
Petitions for mercy submitted on behalf of a convict under sentence of death shall be dealt
with mutatis mutandis in the manner provided by these instructions for dealing with a petition
from the convict himself. The petitioner on behalf of a condemned convict shall be informed
of the orders passed in the case. If the petition is signed by more than one person, it shall be
sufficient to inform the first signatory. The convict himself shall also be informed of the
submission of any petition on his behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners
making petition for mercy to the President of India on behalf of any of the convicts. Looking
to the very nature of the power to grant pardon or clemency, applications or petitions for
mercy by foreigners will have to be considered on the same footing as those submitted by
Indian citizens. In light of the above, it can be inferred that there is nothing to bar a foreigner
from applying for mercy.
Article 72 and Impact of other Statutes:

The conflict of Art .72, with another statute, came before the Court in the case of Maru
Ram v. Union of India. The issue in this case was, whether S. 433-A of Criminal Procedure
Code, would affect the Art.72 and Art.161 of the Constitution. It was argued that since
Sections 432 and 433-A, are statutory provisions, and modus operandi of the Articles 72 and
161, therefore it would render Article 433-A ineffective. The reason for this was that, it was
different from the other two sections and therefore it would be against the Constitutional
Provisions. However, the court held that although the powers under Art. 72 and Art. 161 and
Sections 432 and 433-A may be similar, but they are not identical.

This decision was later affirmed in RamdeoChauhan v. State of Assam, it was held that the
power under Article 72 and Article 161 of the Constitution is absolute and cannot be
hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by
any prison rules. A similar question came up before the Court in the case of Madhav Shankar
Sonawane v. State of Maharashtra, here the issue was that whether Section 307 of the Indian
Penal Code, read with Section 34 of the Indian Penal Code, which has a sentence of
minimum of 25 years after conviction, places a limitation on the exercise of power under
Art.72. The Bombay High Court in the above case held that it is not allowed to the Courts to
hold that a convict shall have to undergo a minimum period of sentence even with an exercise
of constitutional jurisdiction by high constitutional functionaries under Article 72 and 161.
After looking at all these cases, it can be concluded that in no situation can any legislation
place a limitation on the power under Art. 72 and Art. 161.

Judicial Review of Article 72:

Supreme Court in Maru Ram v. Union of India, said that the power of pardon, commutation
and release under Art. 72 and Art.161 , “ shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play
power.” In Kehar Singh v. Union of India, it was said that the order of the President cannot
be subjected to judicial review on its merits except within the strict limitations defined in
Maru Ram’s case. Looking at these cases, the Court did not actually call for judicial
intervention. However, in Swaran Singh v. State of U.P, the Supreme Court invalidated the
remission of sentence by the Governor because some material facts were not brought to the
knowledge of the Governor. Not only this, the Supreme Court had asked the President to
reassess his decision when it was of the view that the decision of the President was totally
arbitrary and unfair.

In another case the Governor decided to grant pardon to 66 life convicts and there was a
petition under Article 226 by 10 other convicts claiming that their cases satisfied the criteria
relied upon by the Governor in granting concession, it was held that it is for the Governor, on
the suggestions of concerned authorities, to deal with remissions of punishment or to
commute the sentence. It was held that the High Court cannot appropriate the power of the
Governor in a petition under Article 226 of the Constitution and grant pardon to the
petitioners. It is clear from the above case that the Court cannot usurp powers to grant pardon
itself based on the criterion followed by the President and can in no circumstance reverse the
decision of the President. Therefore we can conclude that the Courts can exercise judicial
review over the exercise of pardon in a very limited sense to correct an unfair or arbitrary
decision.
Pardoning Power and Judiciary

The President while exercising the power under Article 72 can go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by the
Supreme Court. The power under Article 72 entitles the President to examine the record of
evidence of the criminal case and to determine for himself whether the case is one deserving
the grant of the relied falling within that power. He can, on scrutiny of the evidence on record
in the criminal case, come to a conclusion different from that recorded by the Court in regard
to the guilt of, and sentence impose on, the accused. In doing so, the President does not
amend or modify or supersede the judicial record. The judicial record remains intact, and
undisturbed. Therefore, there is no interference with the functions of the judiciary. The
administration of justice by the courts is not necessarily always wise or certainly considerate
of circumstances, which may properly mitigate guilt. To afford a remedy, it has always been
thought essential in popular governments, as well as in monarchies, to vest in some other
authority than the courts, power to improve or avoid particular criminal judgments. It is only
a check entrusted to the Executive for special cases. It is clear that the powers vested in the
President of India under Art. 72; in the Governor under Article 161 of the Constitution and in
the State Government under S. 401 of the Cr.P.C. are essentially executive powers of mercy
which operate in completely different fields. The trial of criminals and the passing of
sentences are purely in the domain of the judiciary whereas the execution of sentences is
purely with the Executive Government. Thus it is clear that the orders under Article 72 are
essentially and basically executive orders in a completely different field. The Head of the
Executive exercises his powers of mercy under the Constitution commonly known as ‘mercy
jurisdiction’. Since, no such powers are vested with any judicial organ; there can be no
infringement upon its functions.

Conclusion

As seen that Presidential pardon is one of the powers that been given to the executive by the
Constitution. The researcher in his conclusion would like to look back at the issues discussed
and analyze them.

The first issue that the researcher would take up is the importance and necessity of pardoning
power. It is very important to have this power in Constitution of all the countries. The reason
for this being that there should be some authority which should be present to keep a check
and rectify the mistakes made by the judiciary. The legislature can also do this, through a
process of passing a law. But, in the case of individuals it is not possible for the legislature to
pass a law. In such cases the executive can pardon the individual. This process is also
important because awarding death penalty to someone is the highest punishment that can be
awarded to anyone. Thus, it is important to review it by the Head of the State.

There is a necessity on the part of the legislature to bring an amendment to the constitution, to
prevent the use of power in one’s own case. Meaning that there should not be any self-
pardoning.On the part of the executive. The reason for this being that in such a case there
would be a bias and abuse of power will take place. It is also important to set a time frame for
the exercise of this power; this will help in early disposal of the cases. Judicial review of this
power is another issue which is debatable. The researcher is of the opinion that this power
should not be absolute, at the same time the judiciary should not interfere with his power too
much, it should only be done in the case of arbitrariness and malafide.
The principles of natural justice should be imbibed in the exercise of clemency powers
because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through
procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be
set as the scope will differ from case to case basis.