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DR.

RAM MANOHAR LOHIA


NATIONAL LAW UNIVERSITY

FINAL DRAFT
SUBJECT CONSTITUTIONAL LAW-II
TOPIC PARDONING POWER OF PRESIDENT

SUBMITTED TO:

SUBMITTED BY:

Mr. Atul Kumar Tiwari

Abhay Singh Rajput

Associate Professor

B.A. LL.B. (Hons.)

RMLNLU, Lucknow

Sem-IV Roll No. 05

Signature

Signature

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ACKNOWLEDGEMENT
Without your great support Mr. Atul Kumar Tiwari sir, it would not have been
possible for me to write this project. You have always been very responsive in
providing necessary information, you have always been my source of inspiration
and will remain forever I admit this too. Without your generous support I might not
have been able to complete this project.
I am very thankful to you and for your magnanimous support!

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Abhay Singh Rajput

CONTENTS
TOPIC COVERED

PAGE NO.

Introduction
Statement of the problem
Pardoning Power under Indian Constitution
Reasons behind pardoning power
Time frame for exercise of the power
Contemporary Practices
Pardoning Power and Judiciary
Conclusion
Bibliography

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INTRODUCTION
The Power of Pardon has a long history. Its origin dates back to ancient time. It is an artifact
i.e. a human creation of older times in the history. In the ancient times, it was monarchy
everywhere and there was no such concept as democracy. King was treated as a god. Kings
considered themselves as supreme power. They used to have complete control over the people of
their empire. History tells us that there were many kings who had misused their powers like
Aurangzeb, Babar, and Alexandra etc. Kings used their absolute power in their own manner and
own free will. They were not concerned about public welfare and providing justice to the masses.
They gave harsh punishments to the criminals without sufficient reasons as per their own
discretion. They were not bound by any advice of their ministry. They followed the policy of
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What king says must be right. This was popular known as the Divine Origin theory of the State
and the King.1
The concept of pardon came into being and it has been in existence for ages till the present.
Power of Pardon has yielded positive results in the form of mans belief in the nobility of the
society and its laws. It has also yielded negative results as many criminals have not atoned
themselves even after they have been pardoned and have continued to be a menace to the society.
This has lead to debate of necessity of pardoning power. On the other hand, various issues and
contemporary debates have dealt with the validity of retributive laws especially the magnitude of
those awarding harsh punishments. Thus in the present scenario it has become an utmost need.
The Constitution makers kept the following facts in their mind and instituted three wings of
powers i.e. Legislature, Judiciary and Executive. Legislature made laws many of them being
retributive in nature, the Judiciary interpreted the laws and applied them to punish criminals and
the Executive gave the finishing touch by checking the punishment (judgment) for flaws,
modifying if necessary and then applying it according to the merits of the case. H.M.Seervai had
aptly written:2
Judges must enforce the laws, whatever they be, and decide according to the best of their
Lights; but the laws are not always just and the lights are not always luminous. Nor, again are
Judicial methods always adequate to secure Justice. The Power of pardon exists to prevent
injustice whether from harsh, unjust laws or from judgments which result in injustice; hence the
necessity of vesting that power in an authority other than the judiciary

has always been

recognized.3
But with the course of time, the sanctity of power of pardon had been lost and it became
impure. Gradually various discrepancies have crept in and the old phrase Power corrupts and
absolute power corrupts absolutely became applicable here also. Though the condition is not so
1 Mahajan, V.D. - Political Theory
2 Bakshi; P M (2010). Constitution Of India
3 H.M.Seervai, Constitutional law of India, 4th edition, Page 2004
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critical at present future speculations have given rise to debates about whether the discretion
needs to be curtailed or not. This project specifically aims at looking upon one of the aspects of
this power that there should be guidelines regarding the exercise of this power of pardon by
President or Governor.
As stated before the provision of pardoning power was already in existence while the British
ruled in India; till the independence it derived its validity from Sec 295 of Government of India
Act, 1935 under which the Governor General had power to pardon.4

STATEMENT OF PROBLEM
The Constitution of India is substantially silent about the guidelines the President and the
Governor ought to follow in the exercise of the Power of Pardon. This power is provided to them
as per Article 72 and 161 respectively. Now the Council of Ministers renders aid and advice to
the President as per Article 74(1) but not as per the above mentioned Articles which actually talk
about the pardoning power. Moreover it is clearly mentioned that the Council of Ministers can
only undertake this activity of aiding and advising the President only in the performance of his
FUNCTIONS and NOT POWERS. But unfortunately, in contemporary practice the Council
of Ministers has always interrupted in the Presidents job whenever they got an opportunity to
play the role of a pardoning authority and subsequently always try to satisfy their own whims,
fancies and interests. These interests often gain priority over public and societal interests. This
mal practice has mainly evolved due to judicial interpretation whereas the Constitution of India
does not authenticate it any way.
So, if pardoning is a function then the President ought to take advice from the Ministers and
be bound by it. And if it is a power as the name very well suggests, then he must have full
discretion in the exercising of this power.

4 https://en.wikipedia.org/wiki/Government_of_India_Act_1935
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So, neither the President should be bound by the advice of the Ministers, nor there should be full
discretion to him as it can lead to arbitrariness and misuse.
We therefore need to adopt a middle way whereby the pardoning authority ought to keep
certain predefined and prescribed guidelines in mind while exercising this power. This definitely
does not include him being bound by the advice rendered by the ministers.
This way, there would neither be full curtailment of the Presidents power nor there would be
complete freedom and authority given to him as both have their ill effects.

PARDONING POWER UNDER INDIAN CONSTITUTION


Before the commencement of the Indian Constitution, the law of pardon in British India was
the same as in England since the sovereign of England was the sovereign of India. The
Government of India Act, 1935, recognized and saved the right of the Crown or by delegation to
Governor-General to grant pardons, reprieves, respites or remissions of punishment. Section 295
of the Act, 1935, had conferred on the Governor-General acting in discretion power to suspend,
remit or commute sentences of death. The prerogative of the Crown was also delegated to the
Governor-General by the Letters Patent creating his office, empowering him to grant to any
person convicted by any criminal offence in British India, a pardon either free or subject to such
conditions as he thought fit.5
In India, the power to pardon is a part of the constitutional scheme. The Constitution of India
conferred the power on the President of India and the Governors of States.6
Constitutional Provisions:
Article 161 is the corresponding provision relating to the mercy jurisdiction of the President,
Article 72 says that the Governor has the power to grant pardons etc., and to suspend, remit or
commute the sentence of any person convicted of any offence against any law relating to a
5 P.J Dhan, Justiciability of the Presidents Pardon Power, 26 IBR 1999 70-71.
6 Id.

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matter to which the executive power of the State extends. The executive power of the state
extends to matters with respect to which the legislature of the State has the power to make laws.7
Article 72(1) of the Indian Constitution confers the power on the President to grant pardons and
commute sentences in the following cases:

In all cases where the punishment or sentence is by a Court Martial.

An 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.

In all cases where the sentence is a sentence of death.

Article 72(1) says nothing in sub-clause (a) of clause (1) shall affect the power conferred by law
on any officer of the Armed Forces of the Union to suspend; remit or commute a sentence passes
by a Court Martial.

REASONS BEHIND PARDONING POWER:


The pardoning power is in derogation of the law. Implying that if laws could always be
enacted and administered so they would be just in every circumstance to which they are applied,
there would be no need for the pardoning power.8 Therefore, the power to pardon is meant to be
used in those circumstances where it would not be in the interest of justice to strictly apply the
law even if the circumstances call for the same. Executive clemency exists to afford relief from
undue severity or plain mistake in the operation or enforcement of the criminal law. The
administration of justice by the Courts is not necessarily always wise or certainly understanding
of circumstances, which may properly alleviate guilt. It is a check entrusted to the Executive for

7 V.N. Shukla
8 The Deputy Inspector General of Police, North Range, Waltair and Anr.v. D. Rajaram and Ors, MANU/AP/0162/1960
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special cases.9 A country would be most imperfect and deficient in political morality without a
power for clemency.10

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. The Supreme Court has taken both the stands and the researcher would present
both the view points. 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.
Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of the
view that delay in the decision of the President causes avoidable mental agony and suffering to
the convict. Therefore, to contain such unnecessary harm to the convict there should be a time
frame during which the executive has to give its decision.
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. Therefore, there should be
a time frame for the disposal of a mercy petition.
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. It
may also depend upon the number of mercy petitions submitted by or on behalf of the accused.
Moreover, no fixed delay can be considered a fixed period. The court, therefore, cannot
prescribe a time limit for disposal even of mercy petitions.

9 S.C. Jain, The Constitution of India-Select Issues and Perceptions 57(Taxmann:


New Delhi, 2000).
10 59 Am Jur 2d, Pardon and Parole, 5
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CONTEMPORARY PRACTICE
The contemporary practice in present scenario is that Council of Minister governs and dictates all
terms of pardoning power exercised by the executives. The Honble Court in the case of Maru
Ram v. Union of India11 ruled that the President and the Governors in discharging the functions
under Article 72 and Article 161 respectively must act not on their own judgment but in
accordance with the aid and advice of the Ministers. Article 74(1) of Indian Constitution
provides that:
There shall be a Council of Minster with Prime Minster at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice. 12 Thus
the pardoning power is being used partially. Many times political interest gains more importance
as compare to societal needs, less preferences are given to public interest and what justice and
morality demand. This power is misused and irrelevant considerations are considered relevant,
absence of application of mind etc. are the factors which influence pardoning power. Fairness
and legal certainty which occupies the center position in Rule of Law should be kept in mind
while exercising of such power.
There are two cases which show the contemporary practice
1. Swaran Singh v. State of U.P.13: There was a three judge bench consisting of K.T.
Thomas, M Punchi and M Srinavasan. In this case a MLA of the State Assembly had
been convicted of the offence of murder and within a period of less than two years he
succeeded in coming out of the prison as the Governor of Uttar Pradesh granted
remission of the remaining long period of his life sentence. The son of the deceased
moved the Allahabad High Court challenging the aforesaid action of the Governor and
the same having been dismissed the matter was brought to this Court by grant of special
11 1981 (1) SCC 107
12 Subs. By the Constitution (forty second amendment) act, 1976, sec. 13, for
clause (1) (w.e.f. 3.1.1977
13 AIR 1998 SC 2026
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leave petition. This Court had come to the conclusion that the Governor was not told of
certain vital facts concerning the prisoner such as his involvement in five other criminal
cases of serious offences, the rejection of his earlier clemency petition and the report of
the jail authority that his conduct inside the jail was far from satisfactory and out of two
years and five months he was supposed to have been in jail, he was in fact on parole
during the substantial part thereof. The Court further held that when the Governor was
not posted with material facts the Governor was apparently deprived of the opportunity to
exercise the powers in a fair and just manner and the order fringed on arbitrariness. The
Court, therefore, quashed the order of the Governor with a direction to reconsider the
petition of the prisoner in the light of the materials which the Governor had no occasion
to know earlier. The Court held that if the pardon power was exercise arbitrarily, mala
fide or in absolute disregard of the finer canons of the Constitutionalism, the by-product
order cannot get the approval of law and in such cases, the judicial hand must be
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stretched to it
Satpal v. State of Haryana14: In this case there was two judge bench consisting of G.B.
Pattanaik & U. C. Banerjee. The Judgment was delivered by Pattnaik, J. As per the facts
of the case 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 Sections 149 and 120-B as well as under Sections 392, 148, 452
and 323 of the Indian Penal Code. The learned Sessions Judge convicted all the five
accused persons. Siriyans Kumar Jain (Respondent 3) in the present writ petition instead
of surrendering to serve the sentence, as directed by this Court, filed an application before
the Governor invoking his jurisdiction under Article 161 of the Constitution. The
Secretary to the Governor addressed a letter to the Secretary to the Government of
Haryana, Department of Jails requesting for a report in the matter to be placed before His
Excellency, the Governor of Haryana. The appropriate authority, namely, Joint Secretary
to the Government in the Home Department indicated in his note that the opinion of the
Legal Remembrance should be obtained as to whether this is a fit case for exercising the
power under Article 161 of the Constitution or not. The opinion of the Legal
Remembrancer was then placed before the Minister concerned and finally the Chief

14 AIR 2000 SC 1702


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Minister agreed with the views of the Legal Remembrancer and came to the conclusion
that this is a fit case where discretion given under Article 161 of the Constitution be
exercised and relief prayed for be granted. On the basis of the aforesaid advice of the
Chief Minister the Governor finally granted pardon. It was contended that the very order
passed by the Governor would indicate total non-application of mind. It was found that
Governor has passed the order without being aided and advised by the Council of
Ministers and, therefore, the order is vitiated. Thus court held that 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 Article 161
of the Constitution if the Governor is found to have exercised the power 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 mala fide one or the Governor has passed
the order on some extraneous consideration.

PARDONING POWER AND JUDICIARY


The President while exercising the power under Article 72 can go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by the
Supreme Court. The power under Article 72 entitles the President to examine the record of
evidence of the criminal case and to determine for himself whether the case is one deserving the
grant of the relied falling within that power. He can, on scrutiny of the evidence on record in the
criminal case, come to a conclusion different from that recorded by the Court in regard to the
guilt of, and sentence impose on, the accused. In doing so, the President does not amend or
modify or supersede the judicial record. The judicial record remains intact, and undisturbed.
Therefore, there is no interference with the functions of the judiciary. The administration of
justice by the courts is not necessarily always wise or certainly considerate of circumstances,
which may properly mitigate guilt. To afford a remedy, it has always been thought essential in
popular governments, as well as in monarchies, to vest in some other authority than the courts,
power to improve or avoid particular criminal judgments. It is only a check entrusted to the
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Executive for special cases. It is clear that the powers vested in the President of India under Art.
72; in the Governor under Article 161 of the Constitution and in the State Government under S.
401 of the Cr.P.C. are essentially executive powers of mercy which operate in completely
different fields. The trial of criminals and the passing of sentences are purely in the domain of
the judiciary whereas the execution of sentences is purely with the Executive Government. Thus
it is clear that the orders under Article 72 are essentially and basically executive orders in a
completely different field.15 The Head of the Executive exercises his powers of mercy under the
Constitution commonly known as mercy jurisdiction. Since, no such powers are vested with
any judicial organ; there can be no infringement upon its functions.16

CONCLUSION
As seen that Presidential pardon is one of the powers that been given to the executive by the
Constitution. The researcher in his conclusion would like to look back at the issues discussed and
analyze them.
The first issue that the researcher would take up is the importance and necessity of pardoning
power. It is very important to have this power in Constitution of all the countries. The reason for
this being that there should be some authority which should be present to keep a check and
rectify the mistakes made by the judiciary. The legislature can also do this, through a process of
passing a law. But, in the case of individuals it is not possible for the legislature to pass a law. In
such cases the executive can pardon the individual. This process is also important because
awarding death penalty to someone is the highest punishment that can be awarded to anyone.
Thus, it is important to review it by the Head of the State.

15 The definition that has been given in the Act is, An act or omission made punishable by law for the
time being in force.
16 Balkrishna at Presidential Power of Pardon, 13 J.I.L.I (1971) at 104..

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There is a necessity on the part of the legislature to bring an amendment to the constitution,
to prevent the use of power in ones own case. Meaning that there should not be any selfpardoning. On the part of the executive. The reason for this being that in such a case there would
be a bias and abuse of power will take place. It is also important to set a time frame for the
exercise of this power; this will help in early disposal of the cases. Judicial review of this power
is another issue which is debatable. The researcher is of the opinion that this power should not be
absolute, at the same time the judiciary should not interfere with his power too much, it should
only be done in the case of arbitrariness and malafide.
The principles of natural justice should be imbibed in the exercise of clemency powers
because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through
procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be set as
the scope will differ from case to case basis.

BIBLIOGRAPHY
V.N. Shuklas, Constitution of India, 12th edition,
M.P. Jain, Indian Constitutional Law, 6th edition,
Subhash C. Jain, The Constitution of India- Select Issues & Perceptions,
www.scconline.com

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