3. Introduction
• In common parlance, to pardon means to forgive a person of
his offence.
• Granting of pardon wipes off the guilt of accused and brings
him to the original position of innocence as if he had never
committed the offence for which he was charged.
• Granting of pardon may be of two types:
1. Absolute: Absolute pardon may blot out the guilt itself. It
does not amount to an acquittal unless the Court otherwise
directs. The accused is released permanently without
requiring any condition to be fulfilled.
2. Conditional: Under this pardon, 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.
4. Pardoning Power Under Indian Constitution
• In India, the power to pardon is a part of the constitutional scheme.
• Article 72: Power of President to grant pardons, etc, and to suspend,
remit or commute sentences in certain cases
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) Noting in sub clause (a) 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
5.
6. Article 72; Interpretation
• The meaning of the terms:
• Pardon: Complete pardon
• Reprieve: Temporary suspension of sentence
• Respite: awarding less sentence
• Remission: Reducing amount of sentence
• Commutation: Changing one punishment to another
• It is very important to look at three words to understand the correct
interpretation of the article. These three words are ‘punishment’, ‘sentence’
and ‘offence’.
• The first two words show that the pardon by the President will save a person
from the consequences of an offence and from a punishment as well.
• Offence: The manner in which it is used makes it quite evident that that the
punishment and sentence we spoke about are in respect of the offence
committed. This implies that the punishment which is supposed to be
pardoned has to be in respect of an offence and not for any simple breach of
a condition.
7. • It is said that the power of pardon that has been granted, can be used in
following cases:
i. In respect of an act which, in the eyes of law, is an offence
ii. Which offence is in respect of a matter over which the executive power of
the Union extends and,
iii. For which punishment has already been adjudged
• The pardoning power of President is NOT absolute. It is governed by the
advice of the Council of Ministers. This has not been discussed by the
Constitution but is the practical truth.
Article 72; Interpretation
8. Article 72; Interpretation
• Now let us look at another situation, if the trial of a person is held not
by courts but by a tribunal. Can we say that the act for which the trial
has taken place in the tribunal is also an offence?
• The general situation will be that of non-compliance of the terms of a
certain contract and therefore, termination of the same. The answer
would be no, as in such a case the term, ‘breach of conditions’ is used
and not the word offence.
• To be more precise, the word offence can be used only in the case when
the act done falls within the scope of the word offence as it is defined in
the Indian Penal Code.
• In addition to this it is important to note that the person should be
inquired under Code of Criminal Procedure, because if it is done under
an Act which does not characterize the act as an offence, then the word
punishment would not hold the same meaning as it is meant to be in
Art.72.
• This issue has been discussed in Maqbool Hussain v. State of Bombay
9.
10. Judicial Review of Article 72
• There has always been a debate as to whether the power of the executive to
pardon should be subjected to judicial review or not. Supreme Court in a catena
of cases has laid down the law relating to judicial review of pardoning power.
• Supreme Court in Maru Ram v. Union of India, said that the power of pardon,
commutation and release under Art. 72 and Art.161 , “ shall never be exercisable
arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution
are guarantors of the valid play power.”
• However, in Swaran Singh v. State of U.P, the Supreme Court invalidated the
remission of sentence by the Governor because some material facts were not
brought to the knowledge of the Governor.
• Ranga Billa Case: In this case, death sentence of one of the appellants was
confirmed by the Supreme Court. His mercy petition was also rejected by the
President. Then, the appellant filed a writ petition in the Supreme Court
challenging the discretion of the President to grant pardon on the ground that no
reasons were given for rejection of his mercy petition. The court dismissed the
petition and observed that the term “pardon” itself signifies that it is entirely a
discretionary remedy and grant or rejection of it need not to be reasoned.
•
11. • Supreme Court once again in Kehar Singh v Union of India reiterated its
earlier stand and held that the grant of pardon by the President is an act of
grace and, therefore, cannot be claimed as a matter of right. The power
exercisable by the President being exclusively of administrative nature, is not
justifiable.
• In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors , it
was held by the Supreme Court that it is a well-set principle that a limited
judicial review of exercise of clemency powers is available to the Supreme
Court and High Courts. Granting of clemency by the President or Governor
can be challenged on the following grounds:
i. The order has been passed without application of mind.
ii. The order is mala fide.
iii. The order has been passed on extraneous or wholly irrelevant considerations
iv. Relevant material has been kept out of consideration.
v. The order suffers from arbitrariness.
• Therefore we can conclude that the Courts can exercise judicial review over
the exercise of pardon in a very limited sense to correct an unfair or arbitrary
decision.
12. Time Frame for the Exercise of Power
• Even in this area there is a debate as to whether we can have a time frame for the
exercise of the pardon power.
• It has been observed by the Supreme Court that a period of anguish and
suffering is an inevitable consequence of sentence of death but a prolongation of
it beyond the time necessary for appeal and consideration of reprieve is not.
• Article 21 demands that any procedure, which takes away the life and liberty of
persons, must be reasonable, just and fair. This procedural fairness is required to
be observed at every stage and till the last breath of the life. If there has been an
inordinate delay in the disposal of a mercy petition then procedural fairness is
vitiated and Article 21 is violated
• However, there is a different point of view as well. In this the Court has taken a
different stand from that taken by the Court in earlier cases. The time taken by
the executive for disposal of mercy petitions may depend upon the nature of the
case and the scope of enquiry to be made.
• Moreover, no fixed delay can be considered a fixed period. The court, therefore,
cannot prescribe a time limit for disposal even of mercy petitions.
13. Recent Cases
• At the end of his five-year term, APJ Abdul Kalam left behind over two dozen
mercy pleas, having decided only two — rejecting the plea of rape-cum-murder
convict Dhananjoy Chatterjee (2004), and commuting the death sentence of
Kheraj Ram into life imprisonment (2006)
• Kalam’s predecessor, K R Narayanan, was tardier, and failed to decide a single
mercy petition during his 1997-2002 term.
• 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 Dharmender Singh and Narendra Yadav, who killed an entire
family of five, including a 15-year-old girl, whom Yadav had tried to rape, and her
10-year-old brother, whom they burnt alive.
• Yakub Memon (hanged on July 30), became the third death row convict to be
executed following the rejection of their clemency pleas by President Pranab
Mukherjee. Since he became President in 2012, Mukherjee has turned down
mercy pleas in at least 24 cases.
