Within the broad ambit of “pardon” are five specific varieties of leniency commonly recognized under the Indian Constitutional law: pardon, commutation, remission, and reprieve. Although the term “pardon” is sometimes used interchangeably with “clemency” to refer to the general power to remit punishment, pardons can be said as a discrete component of the clemency power. A pardon provides the most sweeping remission of the consequences that normally attend violation of the law. At common law, as in the United Kingdom, a pardon was an act of mercy whereby the king “forgiveth any crime, offence, punishment, execution, right, title, debt, or duty.” According to an early pronouncement of the United States Supreme Court, a full or unconditional pardon not only releases the offender from any punishment for his/her crime, but also vitiates moral guilt for the offense, so that in the eyes of the law he/she is as innocent as if he/she had never been charged or convicted. Pardons may be granted either before or after conviction, but are most commonly used to restore the reputation and civil rights of an individual who has completed his designated punishment and demonstrated rehabilitation by leading an exemplary life upon release.
‘Amnesty’, derived from the Greek amnestia meaning forgetfulness, connotes that the offender's crime has been overlooked because that course of action benefits the public welfare more than punishment would. Amnesty is typically granted to groups of people, usually before conviction. Unlike a pardon, a grant of amnesty does not eradicate the infraction for which punishment is remitted. This distinction, however, has proved to be of more political than legal significance. Yet the practical effect of amnesty is virtually identical to that of a pardon, and American law recognizes little distinction between the two forms of clemency.
A third, more limited form of clemency is commutation, which is the substitution of a milder punishment for the one imposed by the court. Unlike a pardon, commutation in no way relieves the offender of most of the legal consequences of an offense, nor, presumably, of moral guilt.
The clemency power also embraces remission of fines and forfeitures. The presidential power to pardon has been held to include the power to remit fines and forfeitures imposed by the United States.
Finally, the most limited form of clemency is reprieve, which is nothing more than the temporary postponement of punishment.
Each type of clemency described above has its genesis in the sovereign's power to grant mercy to those who violate the law. Historically, the grounds for dispensing clemency have been limited only by the ingenuity of the human imagination. Clemency has long been considered an extraordinary remedy that can be extended for virtually any reason, whenever mercy, expediency, or personal whim dictated.
-Chapter 03-
Power to Pardon: The India Scenario
By choosing to repose the clemency power in the chief executive alone, the Framers of the Constitution aligned themselves with a vision of the power that was decidedly British in nature. When India was colonised, the king in most instances delegated the pardoning power to his counterpart and direct representative in the Governor.
However, the Revolution ushered in a period of distrust of strong executive authority and temporarily brought to an end the executive's pardon monopoly. By the time the Constitution was drafted in 1949, most state governments placed the power to remit punishment for crimes in the legislative council and the governor jointly, or in the legislature alone.
-Chapter 04-
Aid & Advise of Council of Ministers & Power to Pardon:
The aid and advise of the Council of Ministers in regard to the pronouncement of a pardon or remission or commutation by the President of India is highly necessary.
This is one of the very essential elements that needs to be seen in the light of the Constitutional mandate that the President or the Governor, as the case may be, take the advise of the Council of Ministers to take decisions. The SC has held in the case of Satpal & Anor v. State of Haryana & Ors that there cannot be any dispute with the proposition of law that the power of granting pardon under art 161 is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power being a constitutional power conferred upon the governor by the Constitution is amenable to judicial review on certain limited grounds. The court, therefore, would be justified in interfering with an order passed by the governor in exercise of power under Art. 161 of the Constitution if the governor is found to have exercised it himself without being advised by the government or if the governor transgresses the jurisdiction in exercising the same or it is established that the governor has passed the order without application of mind or the order in question is a malafide one or the governor has passed the order on some extraneous consideration.
Bearing in mind the parameters of judicial review in relation to an order granting pardon by the governor, when we examine the case in hand, the conclusion is irresistible that the governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by this court. It is indeed curious to note that the order clearly indicates that the governor is pleased to grant pardon remitting the unexpired portion of the sentence passed on the prisoner confined in the jail. But the said prisoner was not confined in the jail. That apart the governor has not been made aware of as to the total period of sentence the accused has really undergone, and if at all he has undergone any sentence. The entire file had been produced and there was uncanny haste with which the file has been processed and unusual interest and zeal shown by the authorities in the matter of exercise of power to grant pardon. There is no substance in the contention that the governor passed the order on his own without being advised by the council of ministers.
The order in question has been vitiated and the governor has not been advised properly with all the relevant materials and, therefore, we have no other option than to quash the said order.
True interpretation and effect of Article 74(2) was one of the vexed issues before the Court, particularly in view of certain observations made in the State of Rajasthan v. UOI.
The main argument centered upon the question whether Union of India was obliged to disclose the grounds or reasons and material which formed the basis of the action under Article 356 and the legal consequence of such non-disclosure. The contention of the Union was that disclosure of reasons and material would really amount to disclosure of advice and that was expressly barred by Article 74(2) of the Constitution.
In Maru Ram v. the Union of India, the apex court has said: “The State Government, whether the Governor likes it or not, can advise and act under Article 161, the Governor being bound by that advice.” The apex court said: “It is not open either to the President or the Governor to take independent decisions or direct release or refuse release of any one of their own choice...The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.” In State of Punjab v. Joginder Singh, the Supreme Court had insisted on the requirement of the President and the Governor getting the advice from the Council of Ministers while exercising powers under Articles 72 and 161. In U.P.P.S.C. v. Sureshchandra Tewari, the Supreme Court said: “Neither the President nor the Governor is to exercise the executive functions personally.”
Merely forwarding the material to the Governor could not be construed as giving advice, the Judge said. The SC has held in S.R. Bommai v. Union of India, that: “The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice.”
Justices Sawant and Kuldip Singh in S.R. Bommai v. Union of India summed the legal position as follows:
“... The object of Article 74(2) was not to exclude any material or documents from the scrutiny of the Courts but to provide that an order issued by or in the name of the President could not be questioned on the ground that it was either contrary to the advice tendered by the Ministers or was issued without obtaining any advice from the Ministers. Its object was only to make the question whether the President had followed the advice of the Ministers or acted contrary thereto, non-justiciable.”
The minority judgments do not reflect wide divergence on this point. In Justice Ahmadi's view "since reasons would form part of the advice, the Court would precluded from calling for their disclosure". However the learned judge agrees that “Article 74(2) is no bar to the production of all the material on which the ministerial advice was based.”
Justices Verma and Dayal and Justice Ramaswamy are also of the view that “Article 74(2) is no bar to production of the materials on which the ministerial advice is based.” All judges have stated that the production of material which is not barred by Article 74(2) may yet be subject to a claim for privilege under Section 123 of the Evidence Act.
-Chapter 05-
Judicial Review & Pardon Power
The reason for limiting judicial review on the premise that the repository of power is the highest executive of the State is fallacious. The well settled constitutional position is that every function to be discharged by the President under our Constitutional scheme including the power to issue a proclamation under Article 356 has to be discharged only upon and in accordance with the advice of the Council of Ministers. The Constitution Bench in Maru Ram case reiterated the settled legal position by holding that the expression President wherever it occurs in the Constitution is a shorthand for the Central government. There is no scope for exercise of individual judgment or discretion on the part of the President in the matter of issuance of a Presidential proclamation under Article 356. The satisfaction, in reality, is that of the Council of Ministers and which when challenged becomes the subject matter of judicial review. Consequently repeated references to the high position occupied by the President and his being the head of the State are devoid of legal and constitutional significance and are totally irrelevant in determining the scope and ambit of judicial review.
Furthermore the conclusion about non-justiciability based on the implied premise that the President exercises prerogative power in issuing a proclamation under Article 356 is unwarranted. Our Constitution does not recognise the doctrine of prerogative and power under Article 356 cannot be regarded as a prerogative. Moreover, according to Lord Roskill in Council of Civil Service Unions v. Minister for the Civil Service, prerogative powers include the prerogative of mercy and which according to him is not "susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.” This is clearly contrary to the decision of the Supreme Court in Kehar Singh v. Union of India in which the Constitution Bench has unanimously held that the order of the President under Article 72 which confers upon him the power to grant pardon is not completely beyond judicial review which is available for determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power.
The arguments of the Attorney General were that the power of pardon can be exercised for political considerations and therefore is not amenable to judicially manageable standards and consequently the subject matter of grant of pardon is not justiciable. These were rejected by the Constitution Bench which held in terms that the question as to the area of the President's power under Article 72 can be examined by way of judicial review. It is respectfully submitted that in view of the judgment in Kehar Singh, which is good law and whose correctness has not been questioned or doubted, the observations of Lord Roskill have no application in our constitutional jurisprudence and the reliance placed on them by Justice Verma is misplaced.
-Chapter 06-
Statutory Commandment of Pardon:
Ss. 432/433, CrPC & Art. 72/161, Constitution of India
The Supreme Court in State of Haryana & Ors v Balwan has laid down that it is not necessary to refer to the facts of these cases or the government instructions issued prior to 18 December 1978, when s 433A came to be inserted into the Code of Criminal Procedure, 1973. As laid down by this court in Maru Ram v. Union of India, the power of the state government under ss. 432 and 433 CrPC cannot now extend beyond what is provided by s 433A. The premature release of those convicted before that date had to be considered on the basis of the relevant government instructions and the dates of their convictions. As regards those persons who have been convicted after s. 433A came into force and thus fall within the purview of that section, their cases will have to be considered consistently with s. 433A, and if the convicts are to be given a larger benefit it can only be done now under Arts. 72 and 161 of the Constitution.
The State of Haryana was earlier considering the premature release of life convicts in accordance with the rules framed and instructions issued by it in that behalf. To be consistent with the correct legal position emerging after the enactment of s. 433A and the decision of this court in Maru Ram’s case, the State of Haryana modified its policy decision and instructions and declared that though the cases of life convicts for their premature release will still be governed by the instructions issued by it, in respect of those convicts who fall within the purview of s. 433A, their cases will be considered on individual basis and such cases will be put up to the Governor through the minister of jails and chief minister, with full background of the prisoners and recommendations of the state level committee, along with the copy of the judgment, etc., for order under art 161 of the Constitution of India. Neither the record of these cases nor the judgments of the High Court make it clear when the said change in the instructions was made but it appears that it was made, either sometime in 1982 or latest on 27 June 1984. Obviously, the cases of the respondents-convicts, who are all life convicts and fall within the purview of s. 433A, were required to be considered in accordance with the modified instructions as they could have been released prematurely only if an order in that behalf was passed by the state government in exercise of its power under Art. 161 of the Constitution.
As held by this court in Gopal Vinayak Godse v. State of Maharashtra, and in Maru Ram Case, by earning remissions a life convict does not acquire a right to release, but the release would follow only upon an order made under the Criminal Procedure Code by the appropriate government or on a clemency order in exercise of power under Arts. 72 or 161 of the Constitution.
In view of this legal position, no life convict can validly contend that his case for premature release should be considered according to the government policy/instructions that were in force on the date on which he came to be convicted, as he acquired a right to get remissions as declared and to be released accordingly. If according to the government policy/instructions in force at the relevant time the life convict has already undergone the sentence for a period mentioned in the policy decision/instructions, then the only right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned, for considering exercise of power under art 161 of the Constitution. Ordinarily, when an authority is called upon to exercise its powers, that will have to be done consistently with the legal position and the government decision/instructions prevalent at that time. However, in order to see that a life convict does not lose any benefit available under the remission scheme which has to be regarded as the guideline, it would be just and proper to direct the state government to treat the date on which his case is/was required to be put up before the governor under Art. 161 of the Constitution, as the relevant date with reference to which their cases are to be considered. The direction given by the High Court is not consistent with the decision of this court and the view which we are now taking and, therefore, it was set aside.
It is thus vivid that, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified nor interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise.
The restriction imposed under the section, upon the executive cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the executive. Articles 72 and 161 of the Constitution empowers President and the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the Union and State exist. The restriction imposed upon the executive, under the section, appears to be for a reasonable purpose and object sought to be achieved by the section. The distinction of the convicts under the Act and under other statutes, in so far as it relates to the exercise of the executive powers cannot be termed to either arbitrary or discriminatory being violative of art 14 of the Constitution. Such deprivation of the executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. The section, in so far as it relates to the executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the section in so far as it takes away the powers of the executive to suspend, remit or commute the sentence of a convict under the Act.
-Chapter 07-
Power to Pardon: Limitations
There are four possible sources of standards governing the exercise of the pardon power: the legislature, the judiciary, and the people.
The Legislature:
Because the source of the pardon power under the federal system is an express constitutional grant to the executive, the legislature is generally thought to have effectively been removed from any role in the exercise of the executive pardon power. However, the constitutional grant of the pardon power to the executive branch is not exclusive. Although the Parliament may not restrict the President's use of the power, the power to grant pardon has been held to be vested concurrently in the Parliament. This joint power to grant pardon is also found in some states.
The legislature could thereby have a ratchet-like effect on the institution of pardon: it could increase the opportunities for offenders to be granted pardon without restricting the executive's exercise of the pardon power.
The Judiciary:
Traditionally, the judiciary has refused to limit the executive's power to grant pardon. However, the Constitution presents no insurmountable obstacle to the judiciary's use of judicial review to impose standards on the exercise of the executive pardon power. If a court can refuse to give effect to a presidential pardon that attaches an unconstitutional condition or that affects the vested rights of third parties, to what extent can the judiciary invalidate a presidential pardon because it was issued for reasons that are contrary to public policy or that violate express provisions of the Constitution? Since it is the province of the judiciary to say what the law is, the courts must be willing to review the executive's exercise of the pardon power to assure that it comports with the Constitution. Moreover, the judiciary’s relative independence from political pressure renders it an apt check on the far more politicised executive branch.
The People:
It is of course possible that a constitutional crisis of unprecedented magnitude could result in the limitation of the executive pardon power by the people through amendment of the Constitution. Just such a crisis in England led to Parliament's imposition of constraints on the royal pardoning prerogative at the end of the seventeenth century. Such an eventuality seems unlikely, however. The most controversial pardon in the history of Pardon Power came in the US case -- President Ford's pardon of Richard Nixon -- failed to lead to structural changes in the federal pardoning power. In addition, Presidents apparently realise that the failure to grant pardon, even to the most deserving individuals, represents far less of a problem than does exercise of the power.
Any limitation or change to the president's power to grant pardons will require an amendment to the Constitution. And those are hard to come by, though still possible.
Conclusion
The remission of punishment must be administered in a principled, consistent fashion in order to identify those principles that should direct the exercise of the pardon power.
Since ancient times the power of the executive to suspend the operation of the justice system by extending pardon to an accused or convicted criminal has been a fundamental part of criminal justice systems. It continues to figure prominently in the American system despite its discordance with the checks and procedures that characteristically attend other executive powers. Exercises of the pardon power can usefully be divided into those that further principles of retributive fairness and those that are unrelated to principles of justice. The consistent, principled administration of pardon can best be realised by making this bifurcation explicit and removing the former category of pardon decisions from the unguided authority of the chief executive.
The lack of any standards or checks on the exercise of the pardon power has not stood the Indian system of justice in good stead. Governors (and Presidents in many cases) have regularly exercised the pardon power in ways that are clearly at odds with society's interests, including granting or denying pardons to convicted murderers solely because of campaign promises made to supporters. Abuses of this nature are perhaps inevitable given the lack of standards governing exercise of the pardon power.
Although the notions of punishment have grown gradually more sophisticated since the days of lex talionis (which means the law of retaliation; which requires the infliction upon a wrongdoer of the same injury which he has caused to another), the apparatus for dispensing pardon lurches along today in much the same way that it has for centuries. While a politically accountable representative or body is now substituted for the king as the dispenser of pardon, the pardoning power is still exercised in an ad hoc fashion, with little regard to principled decision making or, for that matter, consistency. Elected officials called upon to decide whether to remit punishment in a particular case can look for guidance to little more than their own personal sense of what is just or politically expedient. Consequently, pardon often operates as an arbitrary exception to our system of justice, rather than as a corrective.
Today's changing political climate underscores the need for principled exercise of the pardon power. Harsher sentencing standards and growing public sentiment in favor of capital punishment have resulted in an increasing number of death penalty cases finding their way into the pardon process.
The atrophy of the pardon power is even more pronounced than these statistics indicate. Even when pardon is granted today, it rarely results in the remission of punishment. The executive pardon power has been used as far back as the 1950s primarily as a means of rehabilitating the criminal record of those who have long since been released from prisons, rather than as a way of assuring that justice is served. The rarity of granting pardon on grounds of innocence is due at least in part to a conservative philosophy about pardon’s proper role.
This dissipation of the pardon power is largely attributable to a lack of standards governing its exercise. Because there is no principled basis for remitting punishment, each pardon decision becomes an ad hoc one that hinges on the vagaries of the individuals weighing the factors they believe are significant in pardon determinations.
Thus, presidential pardon has been so trivialised that it is now used almost exclusively to cleanse the records of federal criminals after they have managed to stay out of trouble for the requisite five or seven years. The pardon power has become little more than a certification that, “with the advantage of CBI information and extensive study, the President has judged that the petitioner is clean.”
Justice administration and enhancement, evidently has little to do with Presidential Pardon, it seems.
Bibliography
Books
-
Shukla V. N., Constitution of India, (New Delhi: Eastern Book Company, 10th Edn., Revised by Singh, Mahendra P., 2001).
Dictionary
-
Oxford English Dictionary, (New Delhi: Universal Publications, 2nd Ed., 1989).
Articles
See Sebba, Criminology: The Pardoning Power -- A World Survey, 68 J. CRIM. L. & CRIMINOLOGY 83, 85-110 table (1977).
Legislations
- Code of Criminal Procedure, 1973.
- Constitution of India, 1950.
Websites
- <http://www.frontlineonnet.com/fl1626/16260390.htm>.
- <http://www.usgovinfo.about.com/library/weekly/aa030601a.htm>.
Refer Sebba, Criminology: The Pardoning Power -- A World Survey, 68 J. CRIM. L. & CRIMINOLOGY 83, 85-110 table (1977).
Clemency is defined as "(m)ildness or gentleness of temper, as shown in the exercise of authority or power; mercy, leniency."
Refer Articles 72 & 161, Constitution of India, 1950.
Refer Art. II, § 2, U.S. CONST
Refer Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866).
Oxford English Dictionary, p. 406 (New Delhi: Universal Publications, 2nd Ed. 1989).
Refer Schick v. Reed, 419 U.S. 256, 273 (1974).
Refer Ex parte United States, 242 U.S. 27, 43-44 (1916); 4 W. BLACKSTONE.
(2000) 251 LRI 3, Writ Petition (CRL) Nos. 45-46 Of 1999, Supreme Court Of India (Criminal Original Jurisdiction)
Maru Ram v. Union of India, (1981) 1 SCC 107 at 146-47.
State of Rajasthan v. Union of India, (1977) 3 SCC 592.
(1989) 1 SCC 204, 214-215.
(1999) 804 LRI 4, CRIMINAL APPEAL Nos 9, 10 and 1001-1010 of 1998, Supreme Court of India (CRIMINAL Appellate Jurisdiction)
Refer Gopal Vinayak Godse v State of Maharashtra (1961) 3 SCR 440; 1961 AIR SC 600, Maru Ram v Union of India (1981) 1 SCC 107; (1981) 1 SCR 1196; 1980 AIR SC 2147.
State of Haryana and others v. Balwan, (1999) 7 SCC 355.
Dadu @ Tulsidas v State of Maharashtra and another, (2000) 502 LRI 4, Writ Petition (Crl) No 169 and 243 Of 1999, Supreme Court of India (Criminal Original Jurisdiction)
Brown v. Walker, 161 U.S. 591, 601 (1896)
The Supreme Court has laid down in majority cases; Refer generally Kehar Singh v. UOI, AIR 1989 SC 653; K. M. Nanavati v. State of Bombay, AIR 1961 SC 112; Maru Ram v. UOI, AIR 1980 SC 2147; Kuljit Singh v. Lt. Governor of Delhi, AIR 1982 SC 774.
Kehar Singh v. UOI, AIR 1989 SC 653.
Kuljit Singh v. Lt. Governor of Delhi, AIR 1982 SC 774.
