PARDONING POWERS IN INDIAN CONSTITUTION
Author: Nardhana R Bhuvana
In the Oxford Dictionary, the term Pardon is defined as an official decision to not punish someone for a crime. The powers relating to pardon are thus known as pardoning powers and the Indian Constitution confers it to both the President and the Governor. While exercising the pardoning powers, it removes the sentence as well as the conviction and it completely absolves the convict from all sentences, punishments and disqualifications. Before the commencement of the Indian Constitution, i.e., from 1935, the law of pardon was defined under Section 295 of the Government of India Act and it did not limit the power of the Sovereign. After the commencement of the Indian Constitution, pardoning powers were being framed under Article 72 and Article 161. Under Article 72 of the Indian Constitution, the President is conferred with the power to grant pardons, reprieves, respites or remission of punishments or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death while under Art 161 of the Indian Constitution, the Governor is conferred with the power to grant pardons, reprieves, respites or remission 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 State extends.
Art 72 and Art 161, are like apples and oranges:
The difference between the Pardoning powers of the President and the Governor is that under Art 72, the President’s pardoning powers has a wider scope than the pardoning powers of the Governor under Art 161. When it comes to court martial, the president has the power to grant pardons even in cases where punishment or sentence is given by the Court Martial, but the governor does not have pardoning powers for the same and the key difference is the President’s pardoning powers extends to death sentences. He can ensure that a death sentence is not enforced, but the pardoning powers of a governor do not extend to death sentences.
Art 72 has its own strings attached:
While the above sentences indirectly imply the limitations of the pardoning powers of the Governor under Art 161, it does not mean that the pardoning powers of the President under Art 72 is entirely free from limitations. The limitations are as follows: 1. The President cannot exercise his pardoning power independent of the Government and 2. The President’s pardoning power is not discretionary in nature. While exercising this power and deciding upon mercy pleas, he has to act on by seeking the advice of the Council of Ministers. The above was also upheld in certain judgments passed by the Supreme Court.
In Maru Ram v. Union of India, the former President had rejected a mercy petition from Maru Ram Kehar Singh, former Prime Minister Indira Gandhi’s assassinator. It was held by the Court that rejection can be justified valid only if he has taken this decision after consulting his Council of Ministers
In EpuruSudhakar v. Ors. Case (2006), it was held by the Supreme Court that if clemency is granted either by the President or the Governor, then it can be challenged in the Court if one of the grounds is reasonably justified, such as: 1. If it is proved that the order was passed without application of mind 2. If the order is proved to be mala-fide 3. The relevant material was kept out of consideration.
In Kuljeet Singh v. Lt. Governor, the matter in Maru Ram v. Union of India again cropped out, the Court held the view that when it comes to the President exercising his pardoning power vested by him under Art 72, it is open to him to scrutinize the evidence in criminal case records and come to a different conclusion compared to what had been recorded in the Court.
Steps to be followed for granting pardon:
The procedure to be followed to grant pardon, the very first step is that a mercy petition should be filed with the President under Art 72 of the Indian Constitution. The petition is then being sent to the Ministry of Home Affairs for consideration and then they consult with the concerned State Government accordingly. Once the consultation is made, the Home Minister will proceed to make recommendations and the petition will be sent back to the President.
Of course, there won’t be any show without a punch:
The reason for introducing pardon and framing powers for the same under the Indian Constitution is that it might substantially prove to be of help to save one innocent life. As the saying goes, we can let a thousand criminals escape but not even one innocent person is to be punished. There are chances for miscarriage of justice or cases of doubtful conviction to happen and by conferring pardoning powers to the President and Governor, they can prevent these mishaps. There is a twofold object behind pardoning powers conferred to the President and it is to rectify the judicial errors occurring in the operation, another is to offer the ability to provide relief from a sentence, punishment or disqualification which the President deems it to be needlessly harsh.
Over the last nine years, 20 death sentences were changed to life imprisonment by the President after recommendations made by the Ministry of Home Affairs.
To conclude, the pardoning powers are always double-edged because the pardoning powers conferred under the Indian constitution are to keep a check over Judiciary. The Indian constitution has provided pardoning powers to rectify Judicial errors and prevent an innocent from punishment. Since the pardoning powers given to the President and Governor are discretionary in nature there will be a high chance of abusive use.
https://www.legislation.gov.uk/ukpga/Geo5and1Edw8/26/2/section/295/enacted https://www.indianconstitution.in/2016/07/article-72-constitution-of-india.html https://indiankanoon.org/doc/873751/  Maru Ram v. Union of India, 1981 SCC (1) 107,https://india.lawi.asia/maru-ram-v-union-of-lndia-and-anr/ EpuruSudhakar& Another v. Govt. of A.P. & Others, AIR 2006 SC 3385,https://www.legitquest.com/case/epuru-sudhakar-another-v-govt-of-ap-others/2B937 Kuljeet Singh v. Lt. Governor, AIR 1981 SC 2339