The clemency power of the President is one of the powers which has been conferred on the executive. Article 72 of the Indian Constitution confers the power of pardon on the President and Article 161 gives the same power to the Governor. The power of clemency has been exercised for centuries. In the earlier period, the power was used by the kings for gaining a political advantage while in today’s times the use and understanding of pardoning power are more often associated with the concept of mercy and fairness.
The meaning of pardon can be termed as “clemency”, “amnestics”, “grace” or mercy, the clemency power is mentioned in the written Constitution of many nations. The President’s clemency power deals with providing justice to the people which is essentially a function of the judiciary.
Clemency power has become an integral part of every nation’s executive function. The power is often criticized based on the doctrine of separation of power which is one of the famous doctrines in the Constitution of India.
The practice of pardoning was widespread across the globe and has its origin from Ancient Athens society, where a practice known as media facilitated a democratic pardon for individuals, who were successful in obtaining the approval of 6000 citizens by way of secret ballot. Although the source of his clemency power was not an executive privilege, it is not difficult to find similarities in the ancient concept of media and the present practice of pardon consideration factors such as the public opinion about the individual sought to be pardoned.
The concept of clemency was employed by the Ancient Romans. The primary objective is to gain political advantage. The Romans used the clemency power to control the masses of soldiers and citizens. For example, the Romans chose every tenth army troops of transgressors and by doing this they created fear and discipline in the remaining soldiers.
The position in India in the context of pardon was very different from Athens and Romans. In India, the King was regarded as the head of the State and the life of a person was totally in the hand of the King, he may punish him or he may grant pardon to him but some sections of the society were not given death sentences like Brahmin offenders and old men and children below 5 years.
At the time of British rule, the power of clemency was endowed on the British monarch. In the common law system, the power of pardon is regarded as an act of mercy in which the King forgives any criminal offender. So, it is well said that the power of providing mercy to the people is not a naive concept.
Power of clemency in various countries
The American Constitution provides the President to grant reprieves or pardons under Article II of Section 2 against the United States, except in the case of impeachment and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the treasury or paid to an informer.
The modern-day concept of the pardoning power in the United States suggests that neither Congress nor the Courts can violate the President’s power to pardon. The power to pardon is an enumerated power of the constitution itself, which is mentioned in Article 2 of the US Constitution that it cannot be used in case of impeachment.
In the UK, the Constitutional monarch can grant a pardon to a conviction on the aid and advice of the council of ministers. A pardon may be absolute and conditional. It is conditional where it does not become operative until the grantee performs a certain act or avoids it.
In Canada, pardons are considered by the National Parole Board under the Criminal Records Act. The federal cabinet has the power to pardon individuals who have been convicted for a criminal offense. The pardon can be free or conditional.
Scope of pardoning power
The scope of clemency power by the President under Article 72 of the Indian Constitution is wider than the pardoning power of the Governor as mentioned under Article 161 of the Indian Constitution. Article 72 condors the power on the President to grant pardon, reprieve, respites, or remissions of punishment or to suspend, remit or commute the punishment of any person convicted in crime in the following cases-
- Where the punishment is by court-martial.
- Where the punishment is for the offense against any law relating to the matters of executive power of the union.
- Where the sentence is the death penalty.
Article 161 confers the power of clemency on the Governor to grant pardon etc in certain cases. The Governor of the State shall have the power to grant clemency, reprieves, respites, or remission of punishment or to suspend or cancel or lessen the punishment of any person convicted of any offense.
The powers of President and Governor differs in the following ways:
- The power of the President to grant clemency extends in the cases where the punishment is by the Court Martial but Article 161 does not provide such power to the Governor under Indian Constitution.
- The President can allow pardon in all cases where the sentence of death but the pardoning power of the Governor does not extend to the death sentences cases.
Purpose of pardoning power
A pardon is an act of granting mercy, forgiveness, clemency. The Constitution of India empowers the President and Governors to grant mercy or pardon to any person. The President is granted the power of clemency with the view that there should be provisions in the legislation to save the person from the consequences of punishment adjudged by carelessness and mistake against that person by the judiciary. It is, for this reason, the provision of mercy is included in the Constitution of India.
As per the views that come forward about the existence of clemency in contemporary times. One of them includes the Hegelian view that promotes clemency power which enhances justice in society. Another one who believes in rehabilitation and redemption theory. The belief is that the person should get a second chance to become a good person and their reasoning is based on public welfare.
The object of pardoning power is to correct judicial errors, for no human system of judicial administration can be free from imperfections. The pardon is an instrument of mercy and the way to correct those grave injustices either on their facts or by an anticipated operation of the criminal’s laws that simply must be reminded. Hence, clemency power is an indispensable element of even the perfect system of laws.
The clemency power and judicial review
The clemency power of the President is not an absolute one but it is governed by the advice of the Council of Ministers. The basic development served by the judicial system in the context of the Article 72 and 161 allows the judicial review. Judicial review is an independent judiciary that assures the faith embodied in the Constitution of India.
There has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not. In a series of cases, the Supreme Court of India has laid down the law relating to judicial review of clemency power.
In Maru Ram v. Union of India (1981) the constitutional bench of the Supreme Court held that the power to grant pardon under Article 72 is to be exercised on the advice of the Council of ministers. The Supreme Court, in this case, laid down emphasis on the British practice while arriving at this conclusion regarding the Indian position.
The Supreme Court in Dhananjoy Chatterjee alias Dhana v. State of West Bengal(1994) case reiterated its earlier decision in Maru Ram and said that ‘the power under Article 72 and Article 161 can be exercised by the Central and State Governments, not by President and Governor on their own. The advice of the appropriate government binds the head of the state’. In this case, the appellant Dhananjoy, a security guard was challenged and tried for rape and murder and also for the offense under Section 380 of Indian Penal Code, for committing theft of the wristwatch of Hetal Parekh, an 18 years old girl in her apartment.
In the case of Kehar Singh v. Union of India (1989) a five-judge bench of the Supreme Court has examined the scope of the President’s pardoning power under Article 72 in detail. The petitioner, Kehar Singh, was convicted for the crime of murder for assassinating Prime Minister Smt. Indira Gandhi’s sentence to death was confirmed by the High court and his appeal to the Supreme court was also dismissed. He further filed a petitioner to the President for the grant of pardon. The President rejected his petition on the advice of the Union Government without considering the merits of the decision of the Supreme Court confirming the death sentence. The court opined that the President in the exercise of his power under Article 72, must scrutinize the evidence on record and come to a different conclusion both on the guilt of Kehar Singh and the sentence imposed on him. The president does not amend, modify, or supersede the judicial record. The judicial record remains intact. The court need not spell out specific guidelines for the exercise of power under Article 72 this is so because the power under Art.72 is of the widest amplitude. 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 with the law laid down in the present case.
In a landmark case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) the Supreme Court held that the clemency power of the President and Governor under Article 72 and Article 161 is subject to judicial review.
The Supreme Court laid down certain grounds on which can be claimed by the petitioner for judicial review of the clemency power:
- If the order is passed without any application of mind.
- If the order passed is malafide.
- If the order passed on completely irrelevant considerations.
- If the order suffers from arbitrariness.
The Apex Court states that the cases where the delay in mercy petition was unexplained of 6 to 12 years, then in those cases the death sentences must be commuted by life imprisonment. There are many factors on which the order of clemency can be challenged like mental illness, age of the accused, lack of legal aid, etc. The Court further observed that these powers rest upon the highest authorities i.e. the President or the Governor of the State, as the case may be and there is no word limitations mentioned in the Articles and they may grant remission as an act of grace and humanity in appropriate cases.
Instances in which the President has used this power
There are so many instances in which the mercy petitions were granted by the President using his power under Article 72 of the Indian Constitution.
Govindasamy (2000) was convicted for the offense of murder by brutally killing his relatives in their sleep in 1984. He belonged to a poor family in Tamil Nadu. The reason behind this act is that his parents were tortured over a land dispute. His merciful pleas were rejected many times. Finally, the President considered his mercy petition after finding that ‘there was no eye-witness’ to the murders he was convicted for.
Dharmendra Singh and Narendra Singh Yadav (1997) convicts for the offense of murder from Uttar Pradesh were pardoned. In 1994 they had brutally killed a family of five including a 15- year old girl child. Narendra Singh had tried to rape her a few days before, failing which he conspired with Dharmendra Singh to teach them a lesson. Three people were beheaded while a 10 year-old-boy was thrown alive into the fire.
Another instance is of Shobhit Chamar (1998) a landless cobbler from Bihar Bhabua district who won his pardon in 2011. He was condemned to death for killing 6 members of his upper-caste landlord’s family including the children.
Dhanajoy Chatterjee (1994), the accused who was sentenced to the death penalty for the crime of rape and murder in the year 1990 and had filed mercy petitions to the Governor of West Bengal. He was hanged after waiting for fourteen years when his mercy plea was rejected by the President due to delay in exercising his clemency power.
The mercy petition by Afzal Guru (2003) who had attacked the Indian parliament in 2001 and Azmal Kasab who was held responsible in Mumbai Attacks and who was sentenced to death has been decided and rejected by the President recently.
Besides these, there are a lot of cases in which mercy appeals are pending before the President. The mercy appeal of Sushil Maru accused of brutally killing a five-year-old girl in 1995 and three Dalits from Bihar convicted for massacring people of upper caste organizations are pending disposal before the President.
The clemency power of the President is very significant as it corrects the errors in the judiciary. The Constitution under Article 72 empowers the President to grant pardon, suspend, remit or commute sentences including the death sentence. A parallel power is also given to the Governor of the State under Article 161. As the judicial review is paramount in our Constitution the clemency power of the President and Governor are subjected to limited judicial power. It is a good development so far as it prevents the misuse of this constitutional power by unscrupulous politicians in favor of people with power and influence.
If this power is used properly by the judiciary and misused by the executive then, it would be helpful to remove the flaws of the judiciary. The ‘justice delayed is justice denied’ phrase suits the clemency power since there are many instances where there is an unexplainable delay in replying to the petitions. If it takes a long time to resolve the matter, then the clemency power will be more of denial of justice rather than a way to justice.