President, being the Head of their Republics exercises various prerogative powers during course of their office all over the globe in order to extend the lights of justice and equity all over the country. Power of pardoning is one of the examples of such power.
A pardon is suspension or reduction of punishment. It is a kind of grace which is granted to the accused in order to wipe out his guilt and brings him back to his original position as if he has never been committed for any offence. It is matter of privilege and cannot be demanded as subject to a constitutional right. It is exclusively an act of executive function which is exercised by the Head of the State.
Almost all the countries of the world have adopted provision of power to grant pardon as crucial phenomenon of there Constitution.
Recently the power of pardon was exercised by past president of USA, Donald Trump to in favour of his former National Security Advisor (Michael Flynn) who was two times convicted for offence of lying with FBI just before less than two months left from holding of his office.
Pardoning power of President within the ambit of Article 72 of the Constitution of India:
Article 72 of Indian Constitution deals with provisions of pardoning power by president in India and states that, the President of India is empowered to exercise five types of pardon in relation with the sentence of the person alleged to have being convicted for any offence namely:
- Cases in which the punishment or sentence is granted by Court of Martial or;
- Cases in which the punishment or sentence is granted for an offence against any law in which executive power of Union extends;
- Cases in which sentence for death has been committed.
Types of pardon:
As mentioned above, there are mainly five types of pardons which can be exercised by the president they are given below:
- Pardon- It means wiping out all the guilt of the accused and brings him back to his original position as if he has never done anything and treating him as a normal citizen.
- Commutation- It means altering the type of sentence as such as a rigorous imprisonment to simple imprisonment.
- Reprieve- It means a delay is implementation of sentence in order to grant accused a sufficient time to apply for mercy petition before the President or any other legal remedies.
- Respite- It means lowering the level or quantum of punishment on an account of some special grounds such as pregnancy or a mental stage of a person concerned.
- Remission- It means altering the level of punishment, without changing the nature of the punishment such as reducing ten years imprisonment into five years.
Pardoning power of President and Judicial Review:
While realizing the scope and ambit of judicial review with relation to the pardoning power by President under Article 72 of Constitution of India the Hon’ble Supreme Court has held different opinion at different phase, some of which are given below:
- In the case of Kehar Singh v. Union of India, AIR (1989) SC 653, in this case an important question was fall before the honorable Supreme Court is whether while exercising the power of pardon by President of India, whether he is subject to abide by natural justice or not, or whether the court is empowered to have judicial review upon his decision.
While answering the question in the negative way the Supreme Court held that, the power to pardon of president is purely discretionary and there is no obligation on the part of president to hear the concerned parties before coming to any decision.
Moreover, it was also held by the apex court that the decision of grating pardon by president is beyond the judicial review.’
- In case of Kuljeet Singh v. Lt. Governor of Delhi, AIR (1982) SC 774, the petitioners (Ranga and Billa) was convicted with death sentence for murdering two children and was punished with death sentence by Session Court which was confirmed by High Court under Section 26 of the Code of Criminal Procedure (1973). On the special leave petition under Article136 their appeal was also dismissed by the Supreme Court. Leaving with no option otherwise than filling a mercy petition before the President under Article 72 of the Constitution they followed the same. But the aforesaid application was also rejected by president also, without assigning any reasons for doing same.
In review petition the Supreme Court held that the Court possesses judicial review with relation to the facts and examination of the case, even in case of where Constitution has vested the matter only to the executive.
- In the case of Devinder pal Singh v. State of NCT of Delhi, AIR (2013) SC 1975, it was held by the Supreme Court that, the Court is having very limited power to review the decision of pardon held by the President. It can only interfere with the matter related to examination and inspection of evil intention and corruption in the decision, so entertaining review petition for delay in disposing the mercy petition by President is beyond from there ambit.
Position of Council of Ministers in relation to pardoning power of President:
With reference to Article 72 of the Indian Constitution, the Hon’ble Supreme Court held that the President is not allowed to take decision without seeking aid and advice by the Council of Ministers (this can be understood through following leading case):
In case of Maru Ram v. Union of India, 1981 (1) SCC 107, it was held by the constitutional bench of Supreme Court that power of pardon must be exercised by President only after seeking prior aid and advice from the Council of Ministers and not upon its own discretion.
From the above factual information, I can conclude that alike any other law, the power of pardon by the President is also not exhaustive once but it is also subject to certain restrictions and limitations which I found essential for assuring justice and fairness in the decision making.
Disclaimer: The views are personal.