NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

PARDONING POWER OF THE PRESIDENT: A TOOL OF IMPARTING

JUSTICE OR JUST A PRETENTIOUS POWER?

Submitted by Submitted to
Ashwani Tiwari Dr. K. Syamala
Roll no– 861 Associate Professor cum

Semester- III Director (Research &Training)

PARDONING POWER OF THE PRESIDENT: JUST A PRETENTIOUS POWER?

INTRODUCTION

The term pardon is defined as “An act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed” 1 . Historically the practice of
pardoning finds its origin in the British system in which it was a Royal Prerogative of the King
to forgive. It also finds mention in the code of Hammurabi, a series of edicts that were
developed in Babylon nearly 4,000 years ago. During the medieval period, pardon was
extensively used as a method of reducing overcrowding in prisons during war, political revolt
etc. In medieval Europe the power to grant pardon was held by various bodies, including the
Roman Catholic Church and certain local rulers, but by the sixteenth century it usually was
concentrated in the hands of the monarch. In post-Reformation England, the royal prerogative
of "mercy" was used for three main purposes:

(1) as a precursor to the as-yet-unrecognized defenses of self-defense, insanity, and minority;

(2) to develop new methods of dealing with offenders unrecognized by legislation, such as
transportation or military conscription; and

(3) for the removal of disqualifications attaching to criminal convictions.

In ancient Rome the executive would use this power generally to please the people and gain
popularity by creating a merciful image of himself. The power of pardon remains unbridled
with wide discretion provided to the executive. From the outset, the pardon was abused for
personal gain2. The rationale behind the pardoning power is that that “every civilized country
recognizes and has, therefore provided for the pardoning power to be exercised as an act of
grace and humanity in proper cases, this power helps in imparting justice in cases where there
has been injustice done to an individual by the justice system of a land.

1
Black‟s law dictionary, 9th edition, West publishing house.
2
Dr Suresh V Nadagoudar & Sanjeeva Gowda G.S, “Presidential Power to pardon in India: An overview”,
International Journal of Law and Legal Jurisprudence in Studies: Vol 2 Issue 7.
Pardon can be categorized in two forms that is “absolute pardon” which means, the accused is
released permanently without requiring any condition to be fulfilled. The other
form is “conditional pardon” where the offender is let off subject to certain conditions, the
breach of these conditions will lead to revival of his sentence and he shall be subjected to the
unexhausted portion of his punishment.

This research would try and analyse the usefulness of pardoning power for imparting justice in
the country, also it would try to measure the absoluteness of power vested in the president via
article 72 of the constitution.

Research Question
• Do power of granting pardon is also exercised in cases where there is no mistake of
law or error in judgment?
• Should president use the power to pardon in those cases only where there is
miscarriage of justice and the punishment is not appropriate?

PARDONING POWER AROUND THE WORLD

ENGLAND: In England the system of pardon seems to have been grown out of the conflict
between a King and the nobles who threatened his prerogative power. It was applied to the
members of his own household when they committed offences and occasionally to those
convicted of offences against the royal power. The pardon was formerly made under the great
seal, but now a sign in an annual warrant countersigned by a principal Secretary of State is
effective3.The Monarch possessed the Prerogative of mercy, in that convicted persons may be
pardoned or reprieved by Royal command, exercised through the Home Secretary 3. In the
recent times the right to pardon is a prerogative of the Crown alone and is exercised on the
recommendation of the Home Secretary. It can be granted either before or after trial and
conviction. It may be granted conditionally on the offender submitting to some lesser

3
D.C.M. Yardley, Introduction To British Constitutional Law, 41-42 (I960).
5
Hay v. Tower Division Justices, (1890) 24 Q.B.D. 561.
punishment. The grant of a free pardon or the performance of the condition in case of a
conditional pardon absolves the offender from all punishment or disqualification5.

UNITED STATES OF AMERICA: Article II, Section 2(1) of the American Constitution says “He
(the President) shall have the power to grant reprieves and pardons for offences against the
United States except in case of impeachment” This is called the judicial power of the President.
The pardoning power may be exercised by him at any time after the offence has been
committed, either before or after trial or conviction 4. In the landmark case of Schick v.
Reed7, the Supreme Court said: “The plain purpose of the broad pardoning power conferred
was to allow the President to „forgive‟ the convicted person in part or entirely, to reduce a
penalty a specified number of years, or to alter it with conditions which are themselves
constitutionally unobjectionable.

SOUTH AFRICA: Under the South African Constitution:

Pardon is provided uhder Article 84 (2) (j) which states that the President is responsible for
pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.

FRANCE: Article 17 of the French Constitution of October 4th, 1958 provides as under: The

President of the Republic has the right of pardon 5

PARDONING POWER IN INDIA

Historically, the power of pardon was vested in the British monarch. At common law, a pardon
was an act of mercy whereby the king forgave any crime, offence, punishment, execution, right,
title, debt, or duty. This power was absolute, unfettered and not in the Constitution of India.
The law of pardon was present in Section 295 6 of the Government of India Act, 1935 which
did not limit the power of the Sovereign. In the Constitution of India, the power of Presidential

4
Ex PARTE Garland, (1866) 4 Wall, 333.
7
2 Abb. US 382.
5
William Pickles, “The French Constitution of October 4th, 1958”, available
at http://www.politicsresources.net/docs/frconst.html.
6
Section 295, Government of India act, provisions for death sentences.
Pardon is found in Article 72. The criminal procedure code, 1973 talks about pardon in sections
432, 433, 433A, 434 and 435.

Article 72 of the Indian constitution empowers the president to grant pardon, reprieve, respite
or remission of punishment, or to suspend, remit or commute the sentence of any person
convicted of any offence in all cases-

(a) Where the punishment or sentence is by a court martial;

(b) Where the punishment or sentence is for an offence against a law relating to a matter to
which the Union‟s executive power extends; and (c) Of a death sentence7

PROCESS OF RECEIVING PARDON

The process of applying for a presidential pardon starts with filing a mercy petition with the
President under Article 72 of the Constitution, such petition is then sent to the Ministry of
Home Affairs in the Central Government for consideration. The abovementioned petition is
discussed by the Home Ministry in consultation with the concerned State Government. After
the consultation, recommendations are made by the Home Minister and then, the petition is
sent back to the President. Looking at precedents the same was held by a Bench consisting of
Justice G. Menon and Justice C. Reddy 89 a petition should be addressed to the State
Government and then the State Government may seek the opinion of convicting Court on this
petition. Apparently, what the Court can do is only to express its opinion on the question of
sentence as indicated in subjection (2) of Section 432 of the Criminal Procedure Code, 1973,
if opinion is expected when a reference is made by the Government on an application submitted
to it as held by Justice G Oza in the case of Bhagwatibai Kamal Singh Gautam v. State of M.
P12. Justice L. Reddy held that the Government is duty bound to call for the opinion of the
Court whenever the Government is inclined to entertain an application for suspension or
remission of the sentence. An order passed by the Government granting parole to persons who
were convicted and sentenced without following parole rules framed by Government is bad in
law10. Then the final decision finally rests with the president. The whole process of obtaining

7
M.P. Jain Indian Constitutional law, 7th edition, Lexis Nexis, pg. 165-166.
8
Cf Chanmigadu, in re., (1954) Cri LJ 1370(Mad).
9
Cri L.J 1215.
10
Kavuri Sudesthamma v. State of A.P., 1985 Cri LJ 1890 (AP).
a pardon is itself very time taking as generally the state ministry takes years to give its views
and thus the presidents secretariat has become a dumping ground for these petitions 11.

WHEN CAN PARDON BE GRANTED?

It is a well-established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes
of the law 12, but the question whether the power of pardon can be exercised when the court has
sentenced the contemnors to imprisonment or imposed any penalty has not yet been decided.
In the case of Ramdeo Chauhan v. State of Assam 13 , the court stated that the presidents
pardoning power can be exercised anytime after the commission of the offence. Also in the
case of Hukam singh v. State of Punjab 14 it was held by the court that an order passed under
Articles 72 and 161 of the Constitution of India, 1950 and under Section 401 of the Code of
Criminal Procedure, 1898 is justiciable on any of the following grounds:

1) That the authority, which purported to have exercised the power, had no jurisdiction to
exercise the same.

2) That the impugned order goes beyond the extent of the power conferred by the
provisions of law under which it is purported to be exercised.

3) That the order has been obtained on the ground of fraud or that the same having been
passed taking into account the extraneous considerations not germane to the exercise of the
power conferred or in other words, which the order is a result of mala fide exercise of power.

The court also observed that “the exercise of power in this regard cannot be questioned on the
ground of adequacy or inadequacy of the reasons which resulted into the passing of the said
order. The Court is not entitled to investigate the matter on merits but can certainly go into the
question whether the power given has been exercised mala fide or not 15”. On the other hand
the president can go into the merits of the case notwithstanding the fact that it has been

11
ShyamlaYadav,“Mercy petitions await President's clearance”available at
http://indiatoday.intoday.in/story/Mercy+petitions+await+President's+clearance/1/90347.html.

12
Article 372, Constitution of India.
13
Appeal (crl.) 4 of 2000.
14
A.I.R. 1975 H&R 148.
15
Ibid.
judicially concluded by the court16. Thus, the president can grant pardons in cases where there
is an impugned order or miscarriage of justice and the president has the power to personally
study the evidence and facts of the case before deciding20.

EXTENT OF PARDONING POWER WITH THE PRESIDENT

The scope of power conferred on the president under article 72 is very extensive. It extends to
the whole of India17. The supreme court in the renowned case of Kehar Singh v. Union of
India18 where Kehar Singh was convicted under s. 120B read with S. 302 of I.P.C, for the
assassination of Indira Gandhi, then prime minister of India and was sentenced to death. His
appeal to the supreme court was dismissed. His son then presented a petition before the
president of india for the grant of pardon, the president rejected the petition and Pathak C.J
observed:

“The power to pardon is a part of the constitutional scheme, and we have no doubt, in our
mind, that it should be so treated also in Indian Republic. It has been reposed by the people
through the constitution in head of the state. It is a constitutional responsibility of great
significance, to be exercised when occasion arises in accordance with the discretion
contemplated by the context”.

The rationale behind this view is that the presidents pardoning power is viewed as an instrument
to protect right to life and the right to personal liberty, and in rare cases where the law
enforcement system of a state fails there should be a system to protect the life and liberty of an
individual. Another important question raised in Khehar Singh case was: To what areas does
the President‟s power to grant pardon extend? the court answered this question stating that
“the power under article 72 is of the widest amplitude, can contemplate a myriad kinds and
categories of cases with facts and situations varying from case to case, in which the merits and
reasons of state may be profoundly assisted by prevailing occasions and passing time”.

In the constitution of India there is no provision which explains about the manner of exercise
of power of pardon of President and Governor. The Constitution of India, is silent on this point.
Power is used by the Head of the State at the advice of the Council of Ministers.

16
Kehar Singh & ors v. Union Of India, A.I.R. 1989 S.C. 653.
20
Nar singh v. State of U.P., (1955) S.C.R.238.
17
Balakrishna, Presidential power to pardon, 13 J.I.L.I, 103.
18
A.I.R. 1989 S.C. 653.
From time to time, the Supreme Court has considered the question whether there should be
some guidelines for the exercise of power to pardon by the President. In Maru Ram v. Union
of India19, the Court expressed a view in favor of laying down some guidelines for the purpose
of exercising power under Article 72 Constitution of India, in order to avoid any allegation of
arbitrary exercise of power, the court observed “ The proper thing to do, if
Government is to keep faith with the founding fathers, is to make rules for its own guidance in
the exercise of the pardon power keeping, of course, a large residuary power to meet special
situations or sudden developments. This will exclude the vice of discrimination such as may
arise where two persons have been convicted and sentenced in the same case for the same
degree of guilt but one is released and the other refused, for such irrelevant reasons as religion,
caste, colour or political loyalty.” This question again came up in the case of Kuljeet Singh v.
Lt. Governor20 in a writ petition, it was argued before the Supreme Court that under Article 72
of Constitution of India, President‟s power is coupled with a duty and that it must be exercised
fairly and reasonably. Has the Government formulated any uniform standard or guidelines by
which the exercise of the constitutional power under Article 72 Constitution of India, 1950 is
intended to be governed? The bench including Chief Justice Y. V. Chandrachud of the
Supreme Court said that the question was of far-reaching importance and that it was necessary
that it be examined with care. But, then, later the Court did not really examine this question
and left it open and dismissed the writ petition.

PARDONING POWER AND JUDICIAL REVIEW

In the Maru Ram case21 the Supreme court insisted that, although the power of pardon is very
wide, there has to be some limits to it, stating that no constitutional power can be exercised
arbitrarily or mala fide. There may be grounds such as, political vendetta or party favoritism
which may make the actual exercise of constitutional power vulnerable. In the case of Satpal
& ors. v. State of Haryana & ors.22, the facts were that in criminal trial the respondent Siriyans
Kumar Jain along with four other accused persons belonging to the Bhartiya Janta Party were
tried for having committed offence under section 302 read with 149 and 120B as well as under,
section 392 148, 452 and 323 Indian Penal Code. The learned Sessions Judge convicted all the
five accused persons and, on an appeal, the High Court of Punjab and

19
A.I.R. 1980 S.C 2147.
20
AIR 1981 SC 2239.
21
Supra note no. 22.
22
(2010) 8 S.C.C. 714.
Haryana while maintained the conviction of accused. In this case the governor‟s orders granting
pardon was set aside on the ground that the governor has not advised properly with all the
relevant materials. It has also been held in a catena of cases 23 that the president‟s power to
pardon is subject to judicial review but on very limited grounds24. It was also stated in the case
of Swaran Singh v. State of U.P.25 the facts of the case were that one Doodh Nath was found
guilty of murdering one Joginder Singh and was convicted to imprisonment for life. His appeals
to the High Court and Special Leave Petition to this Court were unsuccessful. However, within
a period of less than 2 years the Governor of Uttar Pradesh granted remission of the remaining
long period of his life sentence. This Court quashed the said order of the Governor stating that:

“ We cannot accept the rigid contention of the learned counsel for the third respondent that
this court has no power to touch the order passed by the governer under article 161 of the
constitution, if such power was exercised arbitrarily, mala fide or in absolute disregard of the
finer canons of the constitutionalism, the byproduct order cannot get the approval of law and
in such cases, the judicial hand must be stretched to it.”

In the case of Epuru Sudhakar & Anr v Govt. Of A.P. & Ors26 the immunity of the pardoning
power of governor from judicial review came up. SC set aside a decision of then Andhra
Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who
faced ten years in prison in connection with the killing of two persons including a TDP activist,
the SC bench of justices S H Kapadia and Arijit Pasayat warned that the exercise of the power
would be tested by the Curt against the maintenance of Rule of Law.

“Rule of Law is the basis for evaluation of all decisions (by the Court) that rule cannot be
compromised on the grounds of political expediency. To go by such considerations would be
subversive of the fundamental principles of the Rule of Law and it would amount to setting a
dangerous precedent.”

In the light of these judgements it can be inferred that the president of our country has an
extensive power vested in him under article 72 of the constitution, but the president cannot
misuse this power and this power should only be used for the purpose of imparting justice in

23
Uttar Pradesh v. Sanjay Kumar (2012) 8 SCC.
24
Mohinder Singh v. State of Punjab 2013 CrLj 1559.
25
(1998) 4 S.C.C. 75
26
Writ Petition (crl.) 284-285 of 2005.
cases where there has been a miscarriage of justice. The pardons granted by the president can
be subject to judicial review, but in very rare cases where the pardon itself is impugned.

EXTENT OF USE OF PARDONING POWER BY PRESIDENTS.

There Have been a total of 5,106 pardoning petitions filed before the presidents since
independence and 3,534 of them were rejected 1,572 were considered. R. Venkatraman who
served as the president between the years 1987 and 1992 rejected all 44 mercy petitions before
him. Similarly, K.R Narayan never allowed a single mercy plea between 1997 and 2002.

ANALYSIS OF GRANTED MERCY PLEAS

The researcher would analyze some mercy petitions that were recently accepted During her
2007-2012 term, Pratibha Patil, the country‟s first woman President, accepted the mercy pleas
of 30 death row convicts pardoning, among others, Piara Singh, Sarabjit Singh, Gurdev Singh
and Satnam Singh, who killed 17 members of a family at a wedding; Govindasamy, who
murdered five relatives in their sleep; and Dharmendra Singh and Narendra Yadav, who killed
an entire family of five, including a 15year-old girl, whom Yadav had tried to rape, and her 10-
year-old brother, whom they burnt alive.

DHARMENDRA SINGH AND NARENDRA YADAV: Dharmendra Singh and Narendra Yadav of
Agra were convicted for killing five members of a family, including three minors, in 1994. The
dispute started over property. One Chandra Mohan had purchased 13.5 bigha land and half a
haveli from Dharmendra's grandfather. The other half of the haveli was used by Dharmendra,
who was not happy with the co-ownership. Chandra Mohan's niece Rita (15), was often teased
by Dharmendra's friend Narendra, but she did not return his advances. Chandra Mohan once
gave a thrashing to Narendra, which led to increased bitterness between Dharmendra and
Chandra Mohan. Subsequently, Narendra hatched a conspiracy with Dharmendra to rape Rita
and kill the family members. The duo killed Chandra Mohan and five others on the night of 26
May 1994. Rita was molested before the murder. The Supreme Court held the crime to be
"ghastly, premeditated, and one which fell in the rarest of the rare category". In 2004, the then
Home Minister L.K. Advani rejected the mercy appeal. But P. Chidambaram's MHA
recommended that, "This was a crime driven by greed, lust and family feud, not uncommon in
many parts of India. Having regard to all the factors, especially their age and the fact that both
have been in the prison for 15 years, home minister has opined that it would be appropriate to
commute the sentence of death of one of life imprisonment. 27" Looking at the nature of crime,
the convicts committed multiple murders, raped a minor, and killed her subsequently.

SATISH (UP): In August 2001, a man named Satish raped a six-year-old girl Vishakha and then
killed her. The girl, a student of Meerut's Sarvodaya School, had left home for school on 16
August 2001, but did not return. Her body was discovered from a sugarcane field the next
morning. Satish was seen by eyewitnesses as riding a bicycle with the little girl seated on the
handlebar the day the girl disappeared. The case was considered to belong to the "rarest of rare
category" and Satish was given a death sentence in February 2005.

Granting mercy to individuals who committed such crimes would be gravely unfair towards
the family of the victims and also is against the law as a person who committed multiple
murders and rape is entitled to a death punishment, thus is giving mercy in such cases right or
lawful? the system of granting mercy seems against the judicial system of the country which
after great though has suggested appropriate punishment for crimes.

CONCLUSION AND SUGGESTIONS.

Pardon is based on the idea that the administration of justice by the courts is not always wise.
The pardon is to correct the judicial error, Indian Constitution provides this power to the
President and Governors of the States in articles 72 and 161 respectively. The Supreme Court
of India in the case of Maru Ram v. Union of India 28, has held that the executive should frame
guidelines for their own use of power of pardon, but afterwards in the case of Khehar Singh v.
Union of India & Ors. the Supreme Court held that there are sufficient guidelines in the Articles
and there is no need of framing guidelines. Recently in the case of Shatrughan Chauhan v.
Union of India29, the Supreme Court has framed certain guidelines which are beneficial for the
early disposal of mercy petitions. The power of granting pardon is also exercised in cases where
there is no mistake of law or error in judgment, but out of bare mercy towards the individuals
who have committed crimes of heinous nature and by granting pardon to such individuals, the
mercy command comes in the way of imparting justice by restricting proper punishment to the
accused and restricting justice to the victims.

27
http://www.sunday-guardian.com/news/president-patil-saved-rapist-murderers-from-death-penalty
28
Supra note no. 23.
29
Writ Petition (Criminal) No. 55 of 2013.
As the hon‟ble supreme court has suggested in a catena of cases the president should use the
power to pardon in those cases only where there is miscarriage of justice and the punishment
is not appropriate. Granting pardons solely as a gesture of mercy should be resisted as it comes
in the way of imparting justice.