The power of granting mercy, after being held liable by a competent court of law, a one the common citizen doesn't possess. Since time immemorial, this power was vested with the “king” or the “queen”, i.e. the people occupying the topmost status in the social hierarchy. Over time, this power has been given constitutional recognition. Per the Indian Constitution, this power to grant mercy is enjoyed under Article 72 and Article 161 by the President and the Governor, respectively. There are degrees to this power, that the article will further discuss. However, it is imperative to understand the very significance of such power, for it can alter the status of the person in question.
Reformative Punishment, one of the various shades of the intent behind judicially accorded punishment propounds that punishment should be such that it brings about a relatively positive change in the convict’s character. This philosophy of law backs the legally protected concept of mercy or clemency.
The Statute of Pardoning
Article 72 of the Indian Constitution covers the pardoning powers of the President, while Article 161 talks about the same in the context of a state governor. These pardoning powers include the power to entirely pardon a person, respite any accorded punishment and remit/commute the sentence of any person convicted of an offense. Pardon requests can be put in by convicts of an offense:
- Where the punishment or sentence is awarded by a court-martial, i.e. judicial courts overseeing offenders of the military law.
- Where the punishment or sentence is given for an offense related to a matter over which the union has the power to make law.
- Where a death sentence is awarded to the convict for their offense.
Per 2017 data, post-independence, a total of 4825 mercy petitions are disposed of by the various Presidents of India out of which 3256 are rejected. In the case of 1569 petitions, the death penalty was commuted to a life sentence.
Types of pardoning
The legal concept of a pardon isn't absolute, it has nuances. The ones vested with said power can either reject the plea or exercise their power in 5 constituted ways:
Like the literal meaning, pardoning someone of a crime implies that a guilty person has been relieved and let go. This alters the status of a person from a criminal to a normal citizen, absolving them of a legal criminal record.
Commutation simply means substitution. When the power-holder is of the opinion that the convict cannot be granted an absolute pardon, they simply commute the sentence with a lighter one. This is most often evident in the cases of capital punishment, where the death penalty gets reduced to a life sentence.
This power is essentially a stay order on a death sentence. This implies that the convict is asking for time to prove their innocence or growth via rehabilitation, in order to get a commuted sentence or, absolute pardon
A respite is a lessening in the degree of punishment, but only due to special circumstances. These circumstances are natural and have more to do with the physical being of the convict, than others. This includes factors like old age, pregnancy, physical disability, etc
This pardon retains the nature of the punishment but reduces the amount of time served. For instance, if rigorous imprisonment of 10 years is awarded to the connect, it may be remitted to 6 years, however, its nature i.e. rigorous stays the same.
Grounds of Granting a Pardon
While this power is discretionary, for relative transparency and accountability, certain grounds have been laid down to exercise this power. They are:
- Pardon may be provided to a person who has been wrongfully convicted of a crime.
- Pardon may be granted in case the authority is of the opinion that the convict has been reformed and rehabilitated by the prison system, i.e. they have paid their social debt.
- It may also be granted when the punishment accorded is relatively disproportionate to a crime and can be chalked up to flawed judicial proceedings. For instance, awarding a life sentence for drug abuse.
The very discretionary nature of the power has been a point of contention since its practice. The relevant articles don't imply that this decision can be taken by the president alone, or has to be in line with the collective opinion of the council of ministers.
In the landmark case of f Maru Ram v. Union of India [1980 AIR 2147, 1981 SCR (1)1196], the apex court upheld that the President is obliged to act on ministerial advice. However, this created a bias. The elected CoM and the president are expected to have expediency to a certain political party while the latter is assumed to be a representative of all. For instance, in the Kehar Singh case, the plea of the guilty persons could have never succeeded since he had committed the assassination of Prime Minister and Congress leader Smt. Indira Gandhi and the Congress were then in power at the Centre. Thus, this poses the question of subjecting this power to judicial review.
Need for Pardoning Power
It is assumed that even the highest court of justice is not free from human interpretation. Thus, no justice system in the world is absolutely perfect. Thus, even though the system is structured, there is always the fear of judicial error. These situations where a miscarriage of justice is a concern can be rectified by means of granting a pardon. Thus, pardoning power is an extension of the principle of maintaining checks and balances. This also acts as an incentive for convicts to behave themselves. This further leads to reformative and changed behavior of the convicted person. Moreover, the concept of pardon yields positive results and has improved a man’s belief in society’s nobility and its laws.
In case the President or the Governor rejects the petition requesting a pardon, no reason for the same has to be explicitly explained. This was observed in the Ranga Billa case, in which the nature and ambit of the pardoning power were to be decided. In this case, upon the pardon petition being rejected without any mentioned reasons, the appellant filed a writ petition in the Supreme Court, demanding justice for himself in the form of a valid ground for rejection. The Court dismissed the petition and opined that the very nature of the power is subjective and thus, needn't be explained.
Many other countries too, enjoy this power. In justice systems that accommodate capital punishment, the power to grant pardons is essential. A criminal justice system is there in every country and the object behind punishing a criminal is to maintain public welfare, and so is the object of the pardons, i.e., maintaining public good. These countries include the United States of America, where the President enjoys the power in case the convict violated federal law and the governor enjoys the same if the violation is that of state law. In Canada, the power is vested with the National Parole Board operating under the Criminal Records Act. In the United Kingdom (UK), the power is vested in the Constitutional monarch but on the advice of the council of ministers. Thus, while different interpretations of the law exist, they all aim for the same- recourse.
While the act of pardoning itself is a constituent of the system of checks and balances, to ensure absolute sanctity of the law, judicial review of certain pardons has been allowed in special cases. It is believed that executives may act in furtherance of their political motives, thus polluting the logic behind the power, to prevent that from happening, clemency can be suo-moto challenged by the Courts.
In a landmark judgment, Epuru Sudhakar and Anr v. Government of AP and Ors [(2006) 8 SCC 161] the Supreme Court gave the grounds under which granting of a pardon by the President or Governor can be challenged. Following are the grounds-
- The order is a malaise.
- The order has been passed on extraneous considerations.
- Relevant material has been kept out of consideration.
- The order suffers from arbitrariness.
Our criminal justice system has gears in place to ensure that a convict, facing the cruelest of punishments gets the opportunity to extinguish all available reliefs even out of the court of law.
While debate and discourse on the futility of capital punishment itself are ongoing, pardons are a way of appealing to humanity, or the highest social representatives thereof. The process of granting a pardon is simple, but its disposal is delayed due to the lethargy of the government. In some cases, its power is being abused due to the involvement of politics. There is a need to have an amendment to the pardon law to make sure that mercy petitions are disposed of quickly.