ANALYSIS OF PARDONING POWER IN THE INDIAN CONSTITUTION

Justice Krishna Iyer quoted that “Wide as the power of pardon, commutation and release is, it cannot run riot, for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course”. These words by the tutelage astutely summarise the scope and extent of the pardoning power as it exists in India. The President of India is the chief executive of the Union whose powers and functions are specified in the Constitution of India, 1949. The President has no prerogatives, his powers are granted, and functions are enjoyed by the Constitution of India. The power of pardon has been granted to the President by Article 72[1] of the Constitution:

A pardon is a kind symbolic act that cannot be considered legal. The purpose for allowing the administration such broad and separate powers is to provide relief from excessive severity or obvious errors in the operation or execution of the criminal law. It is a check given to the executive for extraordinary circumstances. The power of pardon exists in a number of other countries as well. A comparable right is provided to the American sovereign, who is the President of the United States of America, as well as the British Crown, where it is regarded as a royal prerogative. These powers are often provided to differentiate their principal position under their national constitutions, as well as to redress judicial mistakes and miscarriages of justice that may arise in the administration of justice or on occasion. The phrase "pardoning power" refers to a class of acts that includes pardon, reprieve, respite, remission, suspension, and commutation. A pardon absolves the criminal fully of any wrongdoing. As a result, it is evident that the legal impact of a pardon is to free the individual from the stigma of guilt for committing the offence. One of the primary issues of disagreement in the use of the pardoning authority is whether the President can use it at his discretion or if he must follow the recommendation of the Council of Ministers. The Supreme Court said explicitly in the landmark case of Maru Ram v. Union of India that the President cannot exercise his own discretion in this area; rather, he works with the help and advice of the Council of Ministers.

The Power of pardon was historically vested in the British monarch during British rule. A pardon was a mercy act in which the king forgave any crime, offence, punishment, execution, right, title, debt or duty. This power was absolute, unchecked and not subject to judicial oversight. The law of pardon was included in Section 295 of the Government of India Act, 1935 which did not limit the sovereign’s power. The Government of India Act, 1935, contained no provision that corresponded to Article 161 of the Constitution. The power of Presidential Pardon is found in Article 71 of the Indian Constitution.

The Governor of state has a similar power under Article 161 of the Indian Constitution. In addition to these Sections 432, 433, 433A, 434, 435 of the Criminal Procedural Code, 1973, provide for pardon. Sections 54 and 55 of the Indian Penal Code, 1872 give the appropriate government the authority to commute the death sentence to life imprisonment.

It gradually became diluted after the Supreme Court of India definitively established that the power of pardon is subject to judicial scrutiny. The court stated in Maru Ram v. Union of India, “Considerations for exercising power under Articles 71 and161 may be numerous, and their occasions diverse, and are left to the appropriate government, but no consideration or occasion can be wholly irrelevant, irrational, discriminatory, or malafide”. Only in these exceptional circumstances will the court consider the exercise. In Kehar Singh v. Union of India[2], the court considered the nature of the President’s power under Article 72 while hearing a petition challenging the President’s rejection of Indira Gandhi’s assassination, Kehar Singh’s mercy petition. The court explicitly stated that Article 72 falls squarely within the judicial domain and is subject to judicial review. However, the court qualified this finding by holding that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram. The court stated that the pardoning power can be reviewed when an executive decision is entirely irrational., arbitrary, unreasonable, or malafide, such as discrimination based on religion, caste, colour, or political loyalty. In Satpal v. State of Haryana[3], the Supreme Court overturned a Governor’s order pardoning a murderer on the grounds that the Governor had not been properly advised all relevant materials.

The court specifically stated the considerations that must be taken into account when exercising the power of pardon, namely the period of sentence actually served by the said convict as well as his conduct and behaviour while serving the sentence. The court reasoned that not knowing such material facts would render a pardon order arbitrary and irrational.

In the United Kingdom, the Crown’s exercise of mercy became firmly established in the Middle Ages, with the violation of the King’s peace emerging as a basis for criminal liability. However, in the United Kingdom, the judiciary has constantly monitored the unbridled, irrational grants of pardons and has implemented a few checks and measures. Currently, the monarch wields power on the advice of the Home Secretary. The Home Secretary’s decision can in some situations be challenged by judicial review. The power of pardon is extremely restricted in scope. In Pakistan, the granting of pardon was in limelight in Sarabhjit’s case. The President of Pakistan has the absolute power, under Article 45 of the Pakistan Constitution, to grant pardon, reprieve, respite, remit, suspend, or commute any sentence imposed by any court, tribunal, or authority. The authority cannot be questioned. In Bangladesh, Article 49 of Bangladesh Constitution confers mercy power on the President. Aside from constitutional provisions, the government may suspend, remit, commute a person’s sentence under the Code of Criminal Procedure 1898. The President is to exercise the prerogative power of mercy in consultation with or on the advice of the Prime Minister through the Ministry of Law and Parliamentary Affairs, according to the Constitution. In exercising the prerogative power of mercy, the President cannot act independently.

Taking today's situation, which is the most recent highlight, Bilkis Bano, Mallika Begum, and a tale of two riots. Gujarat's chief minister and home minister, respectively, were Narendra Modi and Amit Shah in 2002, the year the state saw India's worst-ever riots. The state's violence against its Muslim minority was so heinous that the United States of America and many other Western democracies refused Modi visas, and the Gujarat high court expelled Shah from the state between 2010 and 2012. Bilkis Bano was 21 years old and five months pregnant when she was viciously gang-raped while attempting to leave with her relatives during the post-Godhra communal riots in Gujarat. According to Bilkis Bano, the mob that assaulted the group killed her three-year-old daughter, Saleha, and 14 other members of her family. The family was driving to a village on a truck, but before they arrived, a crowd of 20-30 people attacked them. The guys kidnapped Bilkis' three-year-old daughter and bashed her skull on the ground. With her daughter no longer alive, three men from her town and individuals she knew took turns raping a pregnant Bilkis. The perpetrators left her bare and unconscious, believing she was dead. Bilkis Bano, on the other hand, survived to tell the tale. Bilkis Bano filed a complaint with the National Human Rights Commission (NHRC) and petitioned the Supreme Court. The Supreme Court ordered a CBI investigation into the case in December 2003. A month later, all of the defendants were apprehended, and the trial started. The trial was relocated to Mumbai in August 2004 at the request of the Supreme Court after Bilkis Bano told the court that her family was living in fear and uncertainty. Four years later, the trial court convicted 13 of the 20 defendants. Eleven of them received life sentences for their terrible actions. Seven additional people were acquitted due to a lack of evidence. The officer who first declined to file Bilkis Bano's complaint was sentenced to three years in jail. The Bombay High Court maintained the convictions and life sentences of all 11 and overturned the acquittals of seven others in May 2017. On August 15, 2022, Gujarat Government considered the plea for premature release under the Gujarat government's previous remission scheme. The Gujarat government's decision not only sparked public indignation over the release of rapists and murderers, but experts also pointed out anomalies in remission procedures that allowed the criminals to go free. As a result, there should be checks and balances in the administration, and the judiciary, specifically the Supreme Court, has accepted the plea and sought for the reply from the State – Gujarat.

What is the role of the council of ministers in the pardoning power of the President? Article 72 of the Constitution empowers the President of India to grant pardon; the President of India to grant pardon; however, the President cannot act on his own whims and fancies and must be guided by the Home Minister and the Council of Ministers during this process. The power to pardon is based on the advice given to the President by the executive, who must act in accordance with the provisions of Article 74(1). However, there are few areas where the President can act independently of the Cabinet’s assistance and advice. In the Bachan Singh case[4], former Chief Justice of India P.N. Bhagwati held that the President has absolute powers under Article 72. The Home Ministry’s advice is bound to be political and will not inspire trust. Because the state is the prosecuting agency in all murder cases, it cannot be expected to decide on a mercy plea objectively and overturn a judicial verdict. Mohammed Afzal Guru, who was found guilty and sentenced to death in the Parliament Attack case[5], had been on death row for three years, and the UPA Government had repeatedly postponed its decision on the petition. The political parties play a primary role in granting or rejecting the mercy petition. It is the President’s responsibility to act proactively so that the prerogative of pardon is not compromised by political pressures.

The author in this conclusion would like to look back at the issues of pardoning of power. It is critical that this power be included in the constitution of all countries. The reason for this is that there should be some authority present to keep check on the judiciary and correct any mistakes it makes. The legislature can also do this by-passing legislation. However, in the case of individuals, the legislature cannot pass legislation. The executive has the authority to pardon the individual. This procedure is also significant because the death penalty is the most severe punishment that can be imposed on anyone. As a result, it is critical that the head of state review it. There is a need for the legislature to propose a constitutional amendment to prevent the use of power in one’s own case, that is case there should be no self-pardoning. The principles of natural justice should be ingrained in the exercise of clemency power because they do not interfere with the purpose of mercy jurisdiction and secondly, procedural fairness reduces the scope of bias. There is no need to establish the guidelines because the scope will vary from case to case.


-- [1] (1) The President 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 — (a) in all cases where the punishment or sentence is by a Court Martial; (b) in 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; (c) in all cases where the sentence is a sentence of death. (2) 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 passed by a Court Martial. (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force. [2] 1989 AIR 653, 1988 SCR SUPR. (3) 1102 [3] CRMM 27602 2020 [4] AIR 1980 SC 1898, 1980 CRI LJ 636, (1980) 2 SCC 684 [5] 2003 VIIAD DELHI 1, 107 (2003) DLT 385



This article is written by Shradha Sharma of Presidency University, Bengaluru.

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