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Published Date : 1 August 2019 |   Akanksha Singh

Introduction

The Indian Constitution designates the President as Head of state of India, and the supreme Commander-in-chief of the Indian Armed Forces. In nutshell, the President is the executive head vested with Executive, Legislative and Financial Powers.

One of the powers endowed upon the President is to grant pardon. The meaning of pardon is to officially forgive someone who is serving punishment for a crime committed by him. Thus, the presidential pardon is an act of the President to officially forgive someone so that his punishment comes to an end.

Power of President to grant pardons

Article 72(1) of Indian Constitution states that the President of India shall have 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. in all cases where the punishment or sentence is by a Court Martial;

  2. in all cases where the punishment or sentence is awarded for an offence against a  Union Law; 

  3. in all cases where the sentence is a sentence of death.

Purpose

The purpose behind the incorporation of presidential power is to correct possible judicial errors in case of doubtful conviction. There are also chances of miscarriage of justice as the human system of judicial administration cannot be free from imperfections. Also, India follows Reformative Theory of Imprisonment which says it is always preferable to grant liberty to a guilty offender rather than sentencing an innocent person. 

Scope

In the case of foreigners 

Article 72 does not differentiate between an Indian or a foreigner. It does not exclusively mention that the provision is applicable to Indian Citizens only. It simply says that the President shall have the power to pardon “any person”. Thus, there is no bar on foreigners to get mercy from the President of India.

In the Case of Presidential Self-Pardons

There is also no bar in case of Presidential Self-Pardon as the Constitution is silent on the subject. But there are various judicial interpretations in which court held that 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 cannot be ruled out.

Manner of exercise of presidential pardon power

The Constitution of India is silent as to the manner in which the Presidential Pardon power is to be exercised. There is no statutory procedure established in India for dealing with the mercy petitions. The internal procedure adopted by the Government of India for dealing with the mercy petition is discussed hereunder_

1. Filing of Petition

The process of mercy petition starts with filing an application to the President under Article 72 of the Constitution. There is no fixed or prescribed form for filing the mercy petition. It may be filed just like a simple application in written form addressed to the President by the petitioner or his relatives.

In case of death sentence, the mercy petition should be filed within seven days  after the date on which the Superintendent of Jail informs him about the dismissal of the appeal or special leave appeal by the Supreme Court.

And in case of a sentence other than a death sentence, there is no fix time limit within which the mercy petition is to be filed. The convict can file a mercy petition at any time after the final order or judgment against him has been passed by the court. All these petitions are received by the President's Secretariat on behalf of the President and are forwarded to the Ministry of Home Affairs for their recommendations.

2. Scrutiny of Petition by the Ministry of Home Affairs

After receiving such application, the Ministry of Home Affairs scrutinizes the petition on following grounds:

  1. Whether he can be pardoned by the Governor of the respective state?

  2. If yes, did he approach the Governor for the mercy petition?

And if it found that the offence committed by the person concerned falls within the pardoning power of the Governor and he directly approached the President for mercy then the Ministry of Home Affairs shall forward the application/petition to the concerned Governor.

Thus, the Ministry of Home Affairs only proceeds with the mercy petition when:

  1. His petition has been rejected by the Governor of the respective state.

  2. His offence and punishment do not fall within the pardoning power of the Governor.

But in case the matter belongs to a Union Territory, the condemned prisoner has only one authority i.e. the President to whom he can approach under Article 72 of the Constitution of India.

3. Opinion of Government of State/Union Territory

Once the scrutiny of mercy petition is complete and it is confirmed that the petition can only be disposed of under Article 72 of the Constitution of India, the Ministry of Home Affairs writes to the concerned State or Union Territory Government to give an opinion regarding the exercise of pardoning power in case of the person concerned. 

On receiving such a letter, the concerned government is bound to give its opinion to the Ministry of Home Affairs as soon as possible, but no specific time period has been fixed for submitting the opinion.

 

4. Summary for the President

After receiving the opinion from the concerned government, i.e. the Government of State or Union Territory, the Ministry of Home Affairs prepares a "Summary For The President'. This document contains the case of the convict which consists of profile of the convicted person, his entire case summary, his grounds for seeking mercy, recommendations regarding the acceptance or rejection of the petition, etc. The summary is then forwarded to the President.

On receiving the summary prepared by the Ministry of Home Affairs, the President goes through the entire case and takes the final decision. While taking the final decision, the President by virtue of Article 74 is bound by the advice of the Council of Minister.

 

Do Governors have such powers?

Yes, the pardoning power of the Governor has been expressed in Article 161 of the Indian Constitution. The article asserts that the Governor of State shall have the 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 against any law relating to a matter to which the executive power of the States extends.

The difference between the pardoning powers of the President and Governor are:

  • The power of the President to exercise his presidential power extends in cases where the punishment or sentence is by a Court Martial.

  • The President can grant pardon in all cases where the sentence given is sentence of death

In both the cases, the Governor of state cannot exercise his pardoning power.

Judicial review

Although, the pardoning power of the President and Governors is absolute in nature and it cannot be challenged in the Court of Law. But if the decision is unfair, irrational, mala fide or arbitrary in nature, then it is subject to judicial review.

In the case of Maru Ram v. Union of India, the Supreme Court of India held that if the reasons given in the President’s order are irrelevant, the Court can interfere.

Thus, it is clear that the decision of presidential pardoning is not immune from judicial review. In India, the law of land is supreme i.e. Constitution of India which provides a mechanism a checks and balance between the Executive, the Judiciary, and the Legislative.

Conclusion

The presidential power of the President is an act of mercy which provides the last hope to the culprit when the judicial mechanism fails to save him. It is one of the beauteous thing provided by our constitutional makers. Thus, it must not be only pious but also time bound. The present system of presidential pardoning is not restricted with time which sometimes takes several years to resolve a case. It is also subject of long administrative procedure. Thus, the procedure of presidential pardoning should be easy and time bounded so that justice may be served in time.