President’s Power of Pardon & Judicial Review

Context: The Supreme Court has directed States and other authorities not to delay their decision on mercy petitions filed by death row convicts, to avoid the condemned persons from gaining any advantage or benefit from the hold­up.

In Pardon, it affects both the punishment prescribed for the offence and guilt of the offender. A full pardon may completely erase the guilt.

‘Reprieve’ means a temporary suspension of the punishment awarded by a court of law. For example: Putting a stay order on the death sentence of a convict for certain temporary period. 

‘Respite’ means postponement of the sentence of punishment or reducing the sentence due to certain special circumstances such as disability, pregnancy etc. 

Commutation means changing the punishment from one category to another, such as changing the death sentence to life imprisonment. 
Remission is the reduction of the amount of a sentence without changing its character. Example: A person is imprisoned for14 years in solitary confinement. In Remission, his sentence might be reduced to 10 years but the nature i.e., solitary confinement will not change.

Can Judicial Review can be applied for clemency power 

In the case of Epuru Sudhakar v. Government of Andhra Pradesh, the Supreme Court laid down that judicial review under Articles 72 and 161 is available on the following grounds: 

a. That the order has been passed without application of mind. 

b. That the order is mala fide. 

c. That the order has been passed on extraneous or wholly irrelevant considerations. 

d. That the order suffers from arbitrariness. 

  • The Court also held that pardon obtained based on manifest mistake or fraud can also be rescinded or cancelled. 
  • The Court further elaborated that if power under Article 72 is exercised on irrational, irrelevant, discriminatory grounds or in bad faith, then in such cases Court can examine the case and intervene if necessary.

Do the President/Governor have discretion while exercising clemency powers?

  • Power to pardon vested in the President under Article 72 shall not be exercised independently without the aid and advice of Home minister. 
  • In the case of Maru Ram v. Union of India, Supreme Court held that under Article 72, the President cannot take an independent decision or direct release or refuse release on his own choice. 
  • This has been done to avoid any decision made on arbitrary grounds or on some partial grounds of religion, caste, colour or political loyalty. 

Mercy Petition

  • Appeal beyond SC – If the Supreme Court turns down the appeal against capital punishment, a condemned prisoner can submit a mercy petition to the President of India and the Governor of the State. 
  • Powers of the President & the Governors under Articles 72 and 161 – “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. 
  • Decision Based on Aid & Advice of CoM – The power to be exercised under Article 72 & 161 respectively by President and Governors need to be exercised in conformity with the aid and advice of the Council of Ministers under Articles 74 and 163.
  • Decision not constrained by time – Clemency powers of President and Governor under Articles 72 and 161 respectively can be exercised before, during or after the trial. 
  • Final Opportunity for the Convict – It also allows both executive and judiciary to investigate the matter with compassionate ground. 
  • USA – Indian President’s power of pardon is almost like that in America or Britain. The American President has power to grant reprieves and pardons for offences committed against United States except in cases of impeachment. 
  • In Britain, the Crown enjoys a prerogative to grant pardon to any criminal but the prerogative is exercised on ministerial advice. 

Power of Remission Under Cr.Pc Different From Constitutional Powers of Pardon

  • Suspend or Remit – Criminal Procedure Code (Cr.PC) under Section 432 empowers central and state government to suspend or remit a sentence, in whole or in part, with or without conditions. 
  • Commutation – Section 433 empowers central and state governments to commute death sentence, imprisonment for life and rigorous imprisonment to a lesser degree. 
  • State Government to Consult the Centre – Section 435 of Cr.PC states that powers of state government to suspend, remit or commute a sentence must be done in consultation with the central government if: 
  1. The case was investigated by Central Bureau of Investigation (CBI) or 
  2. The case was investigated by any other agency empowered to make an investigation into an offence under any Central Act. 
  3. The offence involved misappropriation or destruction of, or damage to, any property belonging to the Central Government, or 
  4. The offence was committed by a person in the service of the Central Government while acting in the discharge of his official duty.
  • Section 433A adds a restriction on powers of remission or commutation in certain cases. 
  • It states that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or o
  • where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least 14 years of imprisonment.
  • Article 161 overrides Section 433A of Cr.PC – Supreme Court has held that powers of Governor under Article 161 to pardon override the restrictions imposed under Section 433-A of the Criminal Procedure Code even if the prisoner has not undergone 14 years or more of actual imprisonment. 
  • Section 433-A of Cr.PC does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution. 
  • If the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon. Such power is in exercise of the power of the sovereign, even though the Governor is bound to act on the aid and advice of the State Government.

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