Pardoning Power

ARTICLE 72 OF THE INDIAN CONSTITUTION

Under Article 72 of Indian Constitution, President has 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

 (1) by Court Martial;

(2) an offence against any law relating to a matter to which the executive power of the Union extends; or

 (3) in all cases in which the sentence is one of death.

The object of conferring the “judicial” power on the President is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections. [1]

A pardon completely absolves the offender from all sentences and punishments and disqualifications and places him in the same position as if he had never committed the offence.

TERMS MENTIONED IN ARTICLE 72

Commutation means exchange of one thing for another. Here it means substitution of one form of punishment for another of a lighter character, e.g., for rigorous imprisonment—simple imprisonment.

Remission means reduction of the amount of sentence without changing its character, e.g., a sentence of one year may be remitted to six months.

Respite means awarding a lesser punishment on some special grounds, e.g., the pregnancy of a woman offender.

Reprieve means temporary suspension of death sentence, e.g., pending a proceeding for pardon or commutation

RELATED CASE LAWS

 In India also the pardoning power can be exercised before, during, or after trial.

The distinction between the pardoning power of the Governor and the President has been discussed in detail under the Chapter entitled, “The State Executive“.

In Maru Ram v. Union of India[2], it has been held that in exercising the pardoning power the object and the spirit of Section 433-A of Cr. P. C. must be kept in view.

The power to pardon is exercised by the President on the advice of the Council of the Ministers. In K. M. Nanavati v. State of Bombay, the Supreme Court has held that the Governor’s power to suspend sentence under Art. 161 is subject to the rules made by the Supreme Court under Art. 145 for disposal of pending appeals before it. Once the appeal is filed in the Court the Governor cannot exercise his power of suspension of sentence under Art. 161, and if he does so his order would be invalid being in conflict with the Supreme Court rules under Art. 143.

In Sher Singh v. State of Punjab[3], while disposing of a writ-petition for the commutation of death sentence into life imprisonment on the ground of inordinate delay the Court took an opportunity to impress upon the Central and State Governments that the mercy petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Cr. P. C. must be disposed of expeditiously.

Chandrachud, C.J., said, “A self-imposed rule should be followed by the executive authorities vigorously, that every such petition shall be disposed of within a period of three months from the date when it is received. Long delay in the disposal of these petitions are a serious hurdle in the disposition of justice and indeed, such delay tend to shake the confidence of the people in very system of justice”.

The Court cited several instances and one such case was a mercy petition under Art. 161 pending before the Governor of Jammu and Kashmir for the last eight years.

In Kehar Singh v. Union of India[4],a five-judge Bench of the Supreme Court has examined in detail the scope of the President’s pardoning power under Article 72. The petitioner, Kehar Singh, was convicted of an offence of murder for assassinating the P, M. Smt. Indira Gandhi and sentenced to death which was confirmed by the High Court and his appeal to the Supreme Court was also dismissed. Thereafter, he presented a petition to the President for the grant of pardon. He prayed that his representatives may be allowed to see the President personally in order to explain his case. The President rejected his petition on the advice of the Union Government without going into the merits of the decision of the Supreme Court confirming the death sentence. The Court held that while exercising his pardoning power it was open to the President to scrutinise the evidence on the record and come to a different conclusion both on the guilt of Kehar Singh and the sentence imposed upon him. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact. Kehar Singh had no right to be heard by the President. The manner of consideration of the petition lies entirely within the discretion of the President. The Court need not spell out specific guidelines for the exercise of power under Article 72 this is so because the power under Article 72 is of the “widest amplitude”, and can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case. The President cannot be asked to give reasons for this order. The power of pardon is part of the Constitutional scheme. The order of the President cannot be subjected to judicial review on its merits. Accordingly, it was held that the President must consider the matter afresh in accordance with the law laid down in the present case.

CONCLUSION

Pardoning power cannot be exercised on the basis of caste or political reasons. If this power of President is subject to judicial review it would be a clear cut encroachment of the judiciary in the executive and the separation of power is defeated.

REFERENCES

Constitution of India by J.N Pandey

https://byjus.com/free-ias-prep/pardoning-power-president/#:~:text=Article%2072%20of%20the%20Indian,form%20of%20his%20pardoning%20powers.

https://www.drishtiias.com/daily-updates/daily-news-analysis/pardoning-power-of-the-president


[1] Basu—Introduction to the Constitution of India, Part II, p. 21, (3rd

Ed.)

[2] (1981) 1 SCC 107.

[3] AIR 1983 SC 361

[4] AIR 1989 SC 653.

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