In the last article, we discussed the Veto Powers of the President, and in this article, we’d be discussing the Pardoning Power of the President. Articles 52 to 78 in Part V of the Constitution of India deals with the Union Executive, which consists of the President, Vice President, the Prime Minister, the Council of Ministers, and the attorney general of India.
The President of India is the head of the State, and also the first citizen of India. However, as India follows a Parliamentary form of Government, the President is just a symbolic and ceremonial head of State and works on the aid and advice of the Council of Ministers, which is headed by the Prime Minister. Still, the President possesses some significant powers such as certain veto powers, the power to choose the Government (this power depends on the political circumstances), and pardoning powers.
Pardoning Power of the President
As discussed earlier, Article 72 of the Indian Constitution provides for the Pardoning Power of the President. According to Article 72, the President has the power to grant pardon to persons who have been tried and convicted of any offense in all cases where the:
- Punishment or sentence is for an offence against a union law
- Punishment or sentence is by a court-martial (military court)
- The sentence is a sentence of death
Reasons for granting pardoning power
The Indian Constitution conferred pardoning powers to the President in order to
- keep the door open for correcting any judicial errors in the operation of law
- to afford relief from a sentence, which President regards as unduly harsh
As we know that Article 21 of the Indian Constitution states that no person shall be deprived of his life except in the cases where the procedure established by law is followed.
Moreover, Article 134 (appeal in Criminal cases) of the Constitution states that an appeal shall lie to the Supreme Court from any judgment, final order, or sentence in a criminal proceeding of a High Court.
Normally, Under Article 132(1) (appeal in Constitutional matters) and Article 133 (appeal in Civil cases), an appeal from any judgment, decree, and order of the High Court shall lie to the Supreme Court if the High Court under Article 134A certifies that the case is fit for appeal, i.e. the case involves a substantial question of law of general importance and that in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
However, Article 134 (appeal in Criminal cases) provides that the appeal can lie before the Supreme Court even without the certificate of the High Court in two cases.
- (i) If the High Court, has on appeal reversed an order of acquittal of an accused person and sentenced him to death.
- (ii) If the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.
Moreover, the Sessions Court can pass any sentence, including a sentence of death and life imprisonment, and any capital punishment as authorized by the law. But however, a death sentence passed by the Sessions Court is subject to confirmation by the High Court.
So, all these provisions in the Indian Constitution indicate that the Constitution considers a sentence of death as a very serious punishment and that it shall be passed after all due scrutiny and should be imposed as a last resort.
Following this philosophy of the Criminal Justice System in India, the Constitution Framers provided for the pardoning power of the President, so that the President can, without subject to any other authority, can provide relief to the convicted person if the President feels that the punishment is a judicial error, or is unduly harsh.
Judiciary and President’s pardoning power
The pardoning power of the President of India is independent of the Judiciary, as it is executive power. This ensures the separation of powers between the Executive, Legislative, and Judiciary (which is also included in the basic structure of the Constitution).
However, the President, while exercising such powers, does not sit as the court of appeal.
Different types of Pardoning power of the President
The Pardon removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
A commutation means the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
Remission means reducing the period of imprisonment without changing its character and intensity. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
Respite denotes rewarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprive refers to the stay of the execution of a sentence, especially that of death, for a temporary period of time. The objective of reprieve is to enable the convict to have time to seek pardon or commutation from the President.
Pardoning Powers of the Governor
The Constitution of India empowers the Governor of the State to grant a pardon under Article 161. According to Article 161, the Governor can grant pardons, reprieves, respites, and remission of punishment or suspend, remit, and commute the sentence of any person convicted of any offence against a State Law.
However, the Pardoning Power of the Governor is different from the Pardoning Power of the President:
- The President has the power to pardon sentences inflicted by court-martial (military courts) while the Governor cannot.
- The President can pardon the death sentence, while the Governor cannot. Even if a State Law prescribes a death sentence, the power to grant pardon lies in the hands of the President, and not the Governor. But however, the Governor can still remit, suspend, or commute a death sentence
Article 161 did not empower the Governor to pardon the death sentence. But however, the Supreme Court on 3rd August 2021 held that the Governor of a State has the power to grant pardon to prisoners, including death row ones, even before they have served a minimum of 14 years of a prison sentence.
Supreme Court on Pardoning Power of the President
The Supreme Court of India has examined the pardoning powers of the President and had laid down certain principles regarding such powers, they are:
- The petitioner for mercy has no right to an oral hearing by the President.
- The President can examine the evidence relating to the case afresh and may take a view that is different from the view taken by the Court.
- The pardoning power has to be exercised by the President on the advice of the Union Cabinet.
- The President is not bound to give reasons for his order.
- The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
- There is no need for the Supreme Court to lay out specific guidelines for the exercise of power by the President.
- The exercise of pardoning power by the President is not subject to Judicial Review except where the Presidential decision is arbitrary, irrational, mala fide, or discriminatory.
- Where the earlier petition of mercy has been rejected by the President, the stay cannot be obtained by filing another petition.
The actual exercise of Pardoning Power of the President
There are numerous cases where the President has used his pardoning powers. However, there are some Presidents who use this power rigorously, while some don’t, but at the end of the day, as mentioned earlier, the Pardoning Power of the President has to be exercised by the President on the advice of the Union Cabinet.
When it comes to using such powers rigorously, one name which comes to mind is Pratibha Patil, who granted a record of 30 pardons in 28 months, out of which 22 were related to brutal crimes, during her tenure as the first woman President of India from 2007 to 2012. The first person to be granted pardon by President Pratibha Patil was Govindaswamy, who belonged to a poor family in Tamil Nadu, and was convicted for brutally murdering five of his relatives while they were sleeping, in 1984. However, nobody saw him do it. There were several speculations around the case. Some people believed that he did it because those relatives were torturing his parents over a land dispute. Some believed that it was just cold-blooded murder.
Before Pratibha Patil’s pardon, his mercy plea was rejected three times in his 22 years of imprisonment. And finally, on 31st December 2009, the forty-five-year old Govindaswamy was granted pardon by Pratibha Patil by a Government Order.
Former President Pranab Mukherjee had also granted pardon in several cases, but surely not as many as Pratibha Patil. Pranab Mukherjee had commuted death sentence in at least 4 cases during his tenure. Moreover, he has also rejected the mercy petitions in 14 cases, and some of the cases were related to the 26/11 Mumbai Attacks, including the mercy petition of Ajmal Kasab. Pranab Mukherjee also rejected the mercy petition of 1993 Mumbai blasts convict Yakub Memon.
President Ram Nath Kovind
In his current tenure (till December 2021) the President has rejected one mercy petition. President rejected the mercy petition of Vinay Kumar, one of the four men who were convicted in the 2012 Delhi Gangrape case.
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