By Nisman Parpia
The pardoning power has been founded on consideration of public good and is to be exercised on the grounds of public welfare, which is the legitimate object of all punishments, promoted by a suspension by an execution of the sentences.
In day-to-day language, to pardon means to forgive a person for something wrong that he/she has committed, it can also include an official decision not to punish someone.
The term ‘pardon‘ has been defined as an act of grace, which proceeds from the power entrusted with the execution of the law and exempts an individual on whom it is bestowed upon, from the punishment that the law has inflicted for a commitment of an offence or a crime.
It affects both the punishment that has been prescribed for the offence and the guilt surrounding the offender.
In other words, the grant of pardon erases the guilt of the accused, bringing him to the original position of innocence as if he had never committed the offence for which he has been charged.
Under Indian law, the President of India and the Governors of States have been given the power to grant pardons, which also includes reprieving, respiting, or remising of punishment or even suspending, remitting or commuting of the sentence.
The preamble of the Constitution of India contains the aims and objectives of the constitution emphasizing about justice playing an important and pivotal role in the constitution. Justice, liberty and equality are called the hallmarks of the Indian Constitution.
Liberty of course is the basic human right. The concept of Liberty, coupled with the concept of justice and equality, together upholding the Founding fathers of the Indian Constitution which made all realise the paramount required to make sure that justice is done to all, which includes the protection of liberty and that while doing justice and guaranteeing liberty, the concept of equality, including fair play and objective, is not lost at sight on.
Keeping in adherence the prerequisite and the basic aim and objective of the Constitution the Founding Fathers of the Indian Constitution inserted two important provisions that is, Article 72 and Article 161 and empowered the President and the Governor of the concerned State to deliver justice to an individual if the punishment granted to him/her appears to be harsh or unjust in nature.
Purpose of granting pardon
- Pardon may, to a large extent help in saving an innocent person from being punished due to miscarriage of justice or in cases that include doubtful conviction.
- The hope of being pardoned itself works as an incentive for the convict to behave himself and abide by all the rules in the prison institution, helping significantly in solving the issue of prison discipline.
- It is always preferable to grant liberty to a guilty offender instead of sentencing an innocent man.
- Pardon can be granted in situations where individuals are deemed to have demonstrated or depicted that they have “already paid the society or or otherwise considered to be deserving of them.”
- Pardons at times become mechanisms for combating corruption, allowing particular authority to circumvent a flawed judicial process in order to free someone that is seen as being convicted wrongly.
- The objective of pardoning powers is to improvise foreseeable judicial errors, as no human system of judicial administration can be free from imperfections and flaws.
The power to grant pardon, as proposed in Articles 72 and 161 of Indian Constitution can achieve its aim and object only if they are exercised with a sense of responsibility. The power of judicial review imparts a kind of check over misuse of this extraordinary power in the hands of the executive organ of the state.
The purpose of Articles 72 and 161 is to provide a human touch to the machinery of judicial procedures. If this human touch is not exercised properly, the very purpose of mercy provisions will be defeated.
Article 161 of the Constitution of India: Power of Governors to grant pardons
Article 161 of the Indian Constitution talks about the ‘Pardoning Power of the Governor.’ When a convict has committed an offence, which goes against the law of state, the concerned punishment can be granted the pardon, reprieve, respite and remission by the Governor of that particular state.
The very title of Article 161 of the constitution suggests that it confers a “power” on the Governor to grant pardons, but the Governor is not empowered to pardon a death sentence or even grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a Court martial. However, the President can do so.
Meaning of the terms –
It means to completely absolve an individual of his/her crime and letting him/her go free. Here, the criminal who has been pardoned will become a normal citizen.
When the governor pardons, both the conviction and the sentence of the convict will be fully exempted of the sentences, punishments and disqualifications.
Respiting means reducing the quantum, level or degree of the punishment of a criminal or convict in view of certain special circumstances, like pregnancy or mental health conditions.
When the governor uses the pardoning power of respite, he opts to award a lesser rigorous sentence in place of one which was to be originally awarded to the convict.
This means a delay which has been allowed in the execution of a sentence, usually referring to a death sentence, for a guilty person to grant him some duration of time in order to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
When the Governor of a state chooses to ‘Reprieve’; he stays the execution of a sentence for the time being. By doing this, he enables the convict to have some time to seek pardon or commutation from him.
It means altering the degree of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years but the imprisonment will remain rigorous.
Here the Governor of the state acts to reduce the period of the sentence but the character of the sentence remains the same.
To commute means to change the type of punishment given to the guilty into a less despotic one. Governor can commute the punishment or sentence of any person convicted of any offence or crime going against a state law or he can commute a death sentence.
For example, commuting the punishment of a death penalty into a punishment of serving a life sentence.
The question that arises is up to what extent the executive power of the State can be exercised.
Up to what extent the executive power of the State can be exercised?
The Constitution of India answers the above query in the following words:
Whenever a law comes into force by the State under the State or Concurrent list and if any individual is punished for the infringement thereof such an individual has the right to file a mercy petition under Article 161 of the Constitution of India before the Governor of the concerned State whose Law had been violated by that individual.
On receiving such an application, the Governor of the state possesses the power to issue an order of pardon, reprieve, respite, Commute or remission. But the Article 161 does not bestow upon the Governor, the power to grant pardon in case relating to capital punishment.
The language of the said provision is deemed to be unequivocal. It clearly puts forth that the Governor is empowered to grant pardons, reprieves, etc. to individuals convicted of offences that go against a law relating to a matter to which the executive power and authority of the State extends.
Article 161 is broadly worded and does not mount up to any limitations as to the time at which the said power is exercised or the circumstances, manner or form in which it is to be exercised.
However, a reference to the interpretation of this provision by the Supreme Court makes it comprehensible that the power mentioned therein is to be exercised by the Governor as per the aid and advice of the council of ministers appointed.
In the case of Epuru Sudhakar, Justice Kapadia, concurring, held that the executive power of the Governor to grant clemency has to be mandatorily exercised by him on the aid and advice of the Council of Ministers. It was later submitted that such a ruling was completely unnecessary given the facts of the said case.
It was opined that the given ruling cannot be considered to be the ‘ratio’ and thus is not binding.
The exercise or non-exercise of the pardoning power by the Governors of the states is not immune from judicial review. Limited judicial review is available in specific cases.
The Court will abstain from examining the propriety or sufficiency of the reasons for the exercise of this power in some cases; nonetheless, the Court may intrude in matters if the Governor is exceeding his powers under the constitutional scheme.
For instance, in cases where the clemency power has been exercised arbitrarily, mala fide or in absolute disregard of Constitutionalism, the Courts will have to interfere. The nature of the “discretionary power” of the Governor has been stated in the Article 163 of the Indian Constitution.
Revocation of Pardon
It is quite possible that the pardon granted by the executive may have to be revoked or withdrawn in certain circumstances. The question of revocation may arise for the Consideration of the executive in two cases.
- The very first case talks about revoking of pardon when the pardon itself is obtained by methods like fraud, misrepresentation or misinformation. In other words, a procedure of pardon acquired by false, erroneous and fraudulent representation or an intentional suppression of the truth being void, even though the individual who is being pardoned has no part in perpetration of the fraud.
- The second one revolves around the case of violation of the condition that is imposed by the executive on the individual that is seeking pardon. As a matter of fact, an individual can either be free or conditional. The fulfilment of the condition is always a prerequisite and the breach of the same can always put the individual behind the bars once again.
The pardoning power given to the executive is very noteworthy as it corrects the errors of the judiciary. It gets rid of the effect of conviction without addressal of the defendant’s guilt or innocence. The procedure of granting pardon is simpler and less ambiguous but because of the lethargy and laid-back attitude of the government and political considerations, disposal of mercy petitions is delayed.
Therefore, there exists a desperate need to make amendments in pardoning laws to ensure that clemency petitions are disposed quickly. There should be imposition of a fixed time limit for deciding on clemency pleas.
In regard of the judicial review debate, pardoning power should not be absolute as well as the Judiciary should not intervene too much in exercise of this power. Judicial review lies in the basic structure of our Constitution, and thus pardoning power should be subjected to limited judicial review.
If this power is discharged appropriately and not misused by the executive, it will certainly prove useful to eliminate the flaws of the judiciary.
The Constitution of India not only incorporates the power to grant pardon but also provides for the exercise of power of granting reprieves, respite, Remission, and commutation of a sentence. All these powers can be duly exercised by the President of India and the Governors of the concerned State.
It is observed that the nature, manner and characteristics of these pardoning powers which are to be exercised by both of them is similar but still there is no clash of power bestowed upon these two distinguishable bodies.
The major reason behind this is that the area or extent of this potentiality has already been defined precisely by the founding father of the Indian Constitution.
Moreover, care has also been taken that the power and authority of the President to grant pardon shall not come in dispute with the power and authority of the other officers who enjoy the similar kind of powers under the Laws for the Armed forces.
The major drawback that exists is that this constitutional power is necessitated to be implemented only on the aid and advice of the council of ministers.
Moreover, the Constitution does not provide for any specific procedure, method or even guidelines to be followed or referred to for presentation and disposal of the mercy petitions, which will thus lead to the Possibility of misuse of the power.
Therefore, the ruling party can undoubtedly misuse or abuse this precious power.
- Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors (2006) 8 SCC 161 on 11 October, 2006 ↑
- Satpal & Another vs State Of Haryana & Ors 2007 (4) RCR (CRIMINAL) 600 on 1 May, 2000 ↑
- Narayan Dutt & Ors vs State Of Punjab & Anr (2011) 4 SCC 353 on 24 February, 2011 ↑
- Swaran Singh vs State Of U.P. & Ors (1998) 4 SCC 75 on 5 March, 1998 ↑