PM IAS MAY 27 EDITORIAL

Who wields the power to pardon
GS Paper 2, Federalism, Judiciary, FR, Constitution

• With the Supreme Court’s decision ordering the release of A.G. Perarivalan, one of the seven convicted in the Rajiv Gandhi assassination case, the Governor’s powers of pardon or remission under Article 161 of the Constitution have been in the focus.

Pardoning Authority:

• A pardon is a government decision that relieves a person of part or all of the legal penalties of a criminal conviction. Depending on the jurisdiction’s legislation, a pardon may be issued before or after conviction for the offence.
• Many governments may give pardons to persons who have proved that they have “paid their debt to society” or are otherwise judged deserving of them. Pardons are occasionally granted to those who were unfairly convicted or who claim to have been wrongfully convicted.
• Accepting a pardon may be interpreted as an admission of guilt in some countries; in such situations, the offer is declined. In recent years, cases of wrongful conviction have been dealt with more commonly through appeal than by pardon; nonetheless, a pardon is sometimes issued when innocence is indisputable in order to save the costs involved with a retrial. When capital punishment is used in a jurisdiction, clemency is essential.
• Pardons are often viewed as a technique for combatting corruption, allowing a specific authority to bypass a broken legal procedure in order to liberate someone who was wrongfully condemned. Pardons are not without controversy. In extreme situations, certain pardons may be viewed as corrupt acts by officials, such as offering effective immunity as political favours.

Article 72 of the Constitution grants the President the following powers:

President’s authority to give pardons and to suspend, remit, or commute penalties in specific cases:

1. The President has the authority to give pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence of any individual convicted of any offence:

• In all circumstances in which the punishment or sentence is imposed by a Court Martial;
• In all circumstances where the punishment or sentence is for a violation of any legislation related to an issue to which the Union’s Executive power extends;
• in all circumstances when the penalty is a death sentence.

According to Article 72 of the Indian Constitution, the President of India has the authority to make orders other than pardons. He may issue such an order only in the situations specified above.

2. The President’s power shall never interfere with the power of the Governor or any Officer of the Armed Forces.

As a result, it can be split into 3 sections:

• The President’s authority to make orders.
• The extent to which power is exercised.
• The Impact of the President’s Power on the Powers of Governors and Military Officers

The President has the authority to issue the following orders:

• The President of India may make the following five types of orders under clause (1) of Article 72 of the Indian Constitution:

1. Pardon- It is the order that totally absolves the offender’s guilt. The Supreme Court has ruled that when a convict is granted pardon by the President of India under Article 72, he is completely absolved from the punishment imposed on him as well as all penal consequences and disqualifications that prevent him from continuing in his occupation and are a result of the conviction. Furthermore, the disqualification associated with the conviction is lifted.
2. Reprieve- the execution is simply postponed for a temporary term, or a capital sentence is taken back or withdrawn for a time. In general, the President may issue an order of reprieve in any situation where a mercy petition under Article 72 is brought to the President for consideration, and this order of respite stays in effect until the President’s final disposition of the petition.
3. Respite- This order also leads in the interim suspension of a sentence under exceptional circumstances, such as the pregnancy of a woman sentenced to death or the convict’s insanity. In other terms, it is a postponement of the sentence’s execution until the future. In certain cases, the President may even grant a reduced sentence rather than the penalty imposed by the court.
4. Remission- It means that the sentence is reduced without modifying the nature or character of the penalty imposed by the court; for example, a sentence of two years rigorous imprisonment may be reduced to one-year rigorous imprisonment.
5. Commutation- The President’s final order is a sentence commutation order, in which the President may alter a punishment to one of a different type from that initially granted by the Court.

Because no power can be unlimited, the President of India’s ability under Article 72 of the Constitution to make orders of pardon, reprieve, respite, commutation, and remission is also subject to some limitations. The region within which this authority may be utilised is specifically specified in the Constitution.

According to Article 72(1), the President of India has the authority to give pardons, reprieves, and respites, under the following circumstances:

1. Penalty or sentence imposed by a Court Martial.
2. Punishment or Sentence imposed by Union Laws.
3. Death Penalty under any legislation.

Pardoning Powers under the Governor:

Although the authority has the same effect, the region within which it can be exercised under Article 161 is different. The Governor may issue orders of pardon, reprieve, respite, and so on only in situations of violation of any legislation dealing to a matter to which the executive power of the State extends. The question of the degree to which the executive authority of the state can be exerted emerges.

The Constitution says: “Whenever a law is made by the State under the State or Concurrent list, and if any person is punished for the infringement thereof, such a person may file a mercy petition before the Governor of the concerned State whose Law was violated by that person under Article 161 of the Constitution of India.” When such an application is received, the Governor has the authority to grant an order of pardon, reprieve, respite, Commute, or remission.

However, Article 161 does not provide the Governor the authority to offer a pardon in cases of capital penalty.

Difference between the President’s and the Governor’s Pardoning Powers

The President’s pardoning power under Article 72 is broader than the Governor’s pardoning power under Article 161.

The power is distinguished in two ways:

• Court Martial: The President’s ability to grant pardon extends to situations where the punishment or sentence is imposed by a Court Martial, but Article 161 does not provide the Governor similar authority.
• Death sentence: The President can grant a pardon in all situations where the penalty is death, however the Governor’s pardoning power does not extend to death sentence cases.

Guidelines for Using the Pardoning Power:

• Neither the Indian Constitution nor any other legislation specifies the procedures to be followed for using the constitutional power to grant pardon. The desire for establishing standards for the exercise of this power stems from a broader reading of Articles 21 and 14 of the Constitution.
• The preamble of the Indian Constitution protects “human dignity.” No formal criteria have been established for the use of the authority to grant pardon under the Indian Constitution. Despite the fact that the issue of drafting guidelines was raised before the Supreme Court several times, and that the absence of guidelines may violate Articles 14 and 21, neither the court nor the administration formed the rules.

Pardon Revocation:

It is likely that the executive’s pardon may be reversed or rescinded. The issue of revocation may be brought before the executive in two instances:

• The first instance in which a pardon can be rescinded is where the pardon was acquired via fraud, misrepresentation, or disinformation. In other words, a pardon obtained via false and fraudulent representation or purposeful suppression of the truth is null and void, even if the person pardoned had no role in the deception.
• The second is in the case of a violation of the executive’s condition imposed on the individual requesting pardon. In fact, a pardon can either be on the person requesting pardon or on the person seeking pardon. A pardon might be either unconditional or conditional. The completion of the condition is always required, and failure to do so can always land the individual behind bars again.

Pardoning Process in India:

• Mercy petition: The procedure begins with the President submitting a mercy petition under Article 72 of the Constitution.
• Ministry of Home Affairs: Such a petition is then forwarded to the Central Government’s Ministry of Home Affairs for review.
• State Government: The Home Ministry is discussing the aforementioned petition with the relevant State Government.
• President: Following the consultation, the Home Minister makes suggestions, and the petition is returned to the President.

Judicial Review of Pardoning Power:

• In Maru Ram v Union of India, the Supreme Court’s Constitutional Bench decided that the President’s power under Article 72 is to be utilised on the recommendation of the Central Government, not on his own, and that the advice of the Government binds the head of the Republic.
• Kehar Singh v Union of India: It was decided that the President’s pardon is an act of grace and so cannot be claimed as a matter of right. The President’s power is not justiciable because it is solely administrative in nature.
• Swaran Singh v. State of Uttar Pradesh: The Court ruled that the Governor’s decree was arbitrary and hence needed to be stayed.

Pardoning Power in Different Countries:

• British: The contemporary practise of pardoning has its origins in the British system, when forgiveness was a Royal Prerogative of the King. In the United Kingdom, the Constitutional monarch has the authority to pardon or commute a sentence based on ministerial advice.
• The American Constitution except in the case of impeachment, grants the President the authority to offer reprieves or pardons for offences against the United States. However, this power is only accessible in cases of breach of Federal law, and pardon in cases of violation of State law must be granted by the Governor of the State in question.
• Canada: The National Parole Board considers pardons under the Criminal Records Act.

Conclusion:

• The Indian Constitution not only grants the ability to give pardon, but also the power to grant reprieves, respite, remission, and commuting of a punishment.
• The President of India and the Governors of the respective states have all of these authorities. Although the nature, manner, and other aspects of this pardoning authority to be used by each of them are identical, there is no conflict of power conferred upon these two different entities.
• The fundamental reason for this is that the region or range of this power has previously been expressly stated by the founding father of the Indian Constitution. Furthermore, it has been ensured that the President’s ability to give pardons does not interfere with the power of officers who have equivalent rights under the Armed Forces Laws.