Introduction:
Popularly, the pardoning power is founded on the considerations of the public good and is to be exercised on the ground that the public welfare is the legitimate object of all punishment[1]. Historically, such a clemency power was seen as a prize for the deserving contra to how it is seen as that which serves welfare. In India, Article 72 and Article 161 of the Constitution primarily deal with the pardoning power of the president and governor respectively, whereby she/he can reprieve, respite, remit punishment or suspend, remit, or commute the sentence of any person convicted of any offense. Politically, it is seen as a residuary power, While this power of pardon is acceptable with respect to most offenses, the question of whether it crosses lines with the independence of the judiciary comes in with respect to the offenses relating to contempt of court. This executive power works in tandem with the legislative power as the executive power delves into the areas where the legislature is allowed to draft statutes. This article will discuss the important aspects of the power to pardon.
Scope of Pardon
The scope of the pardoning power can be traced back to the landmark judgment of O.W. Holmes. J in Biddle vs. Perovich[2], A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of our constitutional scheme. When granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment fixed.” While this is in the international context, in India, the Supreme Court in Khehar Singh[3] which not only reiterated the Biddle judgment but also justified the enforceability of a pardon as a remedy for undoing the probable fallibility caused by even the mightiest legal minds while administering justice and this is a power given to an executive authority of a higher level that shall “scrutinize the validity of the threatened denial of life or the continued denial of personal liberty”. Even if this seems to be an unfettered power in the hands, the applicability of the pardon is to be determined by the facts and circumstances of each case.
As it is convinced that pardoning power can never be unrestrained, the influence of politically motivated reasons becomes another factor owing to which the pardoning power must be restricted. Addressing this, in Maru Ram,[4] it was held that political influence cannot be justified. Like, if the Chief Minister releases prisoners in his administrative area because he is celebrating an occasion, it is purely against the constitution. Where the cases are said to be having considerations that are wholly irrelevant, irrational, discriminatory or mala fide, the court’s interference is inevitable. Explicitly, Article 72 comes under the judicial scrutiny for all these reasons, when the decisions have been made on unreasonable grounds such as caste, religion, sex, and race. The court cannot however review how the discretion is being doled out. This raises the question of how exactly can it be scrutinized?
In the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat[5], this question was cleared and the court clarified that it does not sit as an appealing body over the decisions of the president but deals with the legality of the decision by asking 5 questions: Whether the authority exceeded its powers while making the decision? Was there an err? Did the authority ignore the principles of Natural Justice? Did the authority go against reasonableness? Did the authority abuse its powers? When these questions are answered, the authority can be said to be dealing with only the legality as all these questions are of substantial legal importance and like any other administrative action that involves discretion, when certain principles of the constitution are overridden, as the guardian of the constitution, the court will interfere. It is bridled but for the questions of legality alone.
One such example where the court set aside the decision of the executive was in the matter of Epuru Sudhakar vs. Government of Andhra Pradesh[6], where the governor’s orders were declared invalid on the grounds of it being extraneous and irrelevant. Although the limits on Article 161 are said to be under the discretion of the governor if the governor acted independently without being advised by the government, if the governor acted mindlessly, if the intentions were mala fide, if the governor went beyond his administrative jurisdiction, his decisions would be declared invalid by the court.
Interface between Article 72 and 161
As the matter intrinsically shows, 72 is for the president and 161 is for the governor. But what is the relationship beyond this? There is a consequential overlap in these two articles where the executive power exercised by the governor in the matters of pardon has resulted in the sentencing of a person to death, raising a substantive question of law. The superiority is maintained here where the president can grant pardons to the convicts of certain cases. Governors by the powers of Article 72(3) can seize mercy petitions but the petitions filed to the president have no such vices. While it is a prevalent conception that the pardoning power of the president is only for the conflicts involving union government, the ambit of the president’s pardon flows down to even the state level matter. In entirety, while this can be said to be preventive of any probable mistake of the court as no innocent should be convicted, the time delays make it cumbersome and ultimately denying the justice sought.
Justice Delayed is Justice Denied
In most cases, the execution of a death sentence is time heavy. These convicts when they reach to seek the help of the executive for help, the time taken becomes even more. There are cases of undue and unexplained delays due to the mercy petitions being under application. In Devender Pal Singh[7], it was held to be considered a violation of Article 32 and the convict’s sentence of death can be reduced to life imprisonment on the ground of the delay. Initially, the exception for this was the persons convicted under the Terrorist and Disruptive Activities (Prevention) Act.
While the act is not in implementation anymore, one of the key aspects with respect to the pardoning is how the mercy petitions of the TADA convicts can be accepted in the case of extraordinary circumstances such as insanity caused disfigurement, solitary confinement, delayed due to circumstances, etc. Hence, in the case of Shatrughan Chauhan vs. Union of India[8], there was a ratio decided against Devender and the courts said it needs to have a delay that is unexplained and unreasonable, irrespective of the crime being of IPC or Non-IPC in nature.
Conclusion
While the intention behind the granting of a pardon can be justified by the reinstatement of the right to life in case of a judicial error, the possibility of error is less and the probability of granting a pardon is even less. The pardon may be granted due to public welfare and this public welfare may narrow down to the convict himself or general public good, whereby there is a guarantee of the right to life. In all these cases, when a pardon is given, the scope of it is wide but subject to the review of the court in case of extra-constitutional dispensing of the pardoning power by the executive authority, hence we know it is bridled.
References:
[1] As per the Corpus Juris Secundum of the US
[2] Biddle vs. Perovich, 274 U.S 480 (1927) (USA).
[3] Khehar Singh vs. Union of India, 1989 (1) SCC 204 (India).
[4]Maru Ram vs. Union Of India 1981(1) SCC 107 (India)
[5]Mansukhlal Vithaldas Chauhan vs. State of Gujarat 1997 (7) SCC 622 (India)
[6] Epuru Sudhakar vs. Government of Andhra Pradesh, 2000 (5) SCC 170 (India).
[7] Devender Pal Singh Bhullar vs. State (NCT) of Delhi, (2013) 6 SCC 195 (India).
[8]Shatrughan Chauhan vs. Union of India 2014 (2) AJR 40 (India).
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