PARDONING POWER OF PRESIDENT – KAVYA JHAWAR

PARDONING POWER OF PRESIDENT

Author: Kavya Jhawar

GLS Law College, Ahmedabad

ISSN: 2581-8465

ABSTRACT:

• This article talks about the powers given to the President of India which includes many forms of such powers like the Executive, Legislative, Diplomatic, Emergency, Pardoning Powers etc.It explains the gest of pardoning Power that whenever any person is given Capital Punishment i.e. “Death Penalty” and which is even upheld by the highest Court of Appeal i.e. Supreme Court, then the convicted person i.e. to whom death penalty is awarded has a right to approach the President of India to seek pardon. If the President rejects the pardon appeal (mercy petition), then the death sentence has to be executed.
• This article further talks about the positive and negative aspects of this power assigned to the president of India and even the justifiability of such power. Though in a way this power may protect the innocent, but there are instances when this power was misused and those who were hard-core criminals were given pardons and there has been no substantial ground as to why the death penalty was not upheld when the Supreme Court held certain cases to be amongst “rarest of the rare”. This article deals with the critical analysis of President’s Pardoning Power.

PARDONING POWER OF PRESIDENT

The President of India is the executive head of the country. He has been assigned with various powers which the Constitution bestows on him being the President of India. The powers can be divided in the following categories[1]:

1. Executive Powers
2. Military Powers
3. Diplomatic Powers
4. Legislative Powers
5. Ordinance making Power
6. Pardoning Powers
7. Emergency Powers

The powers given to President are manifold and varies for e.g.-The final authority to approve any bill to call the same “Law” rests with the President. He can even pass ordinances if the situation so demands till the time any law is framed like the way it happened after the case of Triple Talaq, Kathua Rape Case etc. He is the Diplomatic Head also who governs the relations between two countries. Though all the powers are unique in one way or other and important also for any country to be governed but the Pardoning Powers of the President is one which is very important as this empowers him to either save the life of any person or let him be hanged till death.

Article 72 of the Constitution of India, 1950[2] states that:

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in 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;

(c) in all cases where the sentence is a sentence of death.

Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.

“Pardoning Power” means that if the person has been convicted of any heinous or gruesome crime and the same is categorized as “rarest of the rare case” by the Courts including the Supreme Court i.e. where the award of capital punishment- Death Penalty is given, then the person so awarded the Death Penalty can approach the President of India asking for pardon, where the President can either grant pardon or reject the same. If the President grants Pardon means the offender is completely absolved of his liability and is put in the position as if he never committed the offence. Reprieve means any sentence which is temporary suspended by the President due to some reasons like pending of proceeding for pardon or commutation. Respite means awarding less sentence on special grounds like the pregnancy of women offender. Remission means reducing amount of sentence without changing its nature i.e. rigorous imprisonment of 20 years being remitted to rigorous imprisonment for 10 years. Commutation means exchange of one sentence for another like substitution of rigorous imprisonment for simple imprisonment. Hence the President can grant any of such things mentioned above, if he feels so.[3]

It is stated that Pardoning Power of President is very important and totally justified so that no wrong executions of death penalty takes place. However, this Pardoning Power has been subjected to criticism by many people stating that such pardon frees the offender back in the society to let him enjoy his life whereas the victim of such crime suffers for whole life if at all he/she is alive. Hence the pardons have to be exercised by the President in a very prudent and reasonable manner and more probably only when the offender is wrongly framed so that same is not subjected to criticism.

Till now, the highest number of pardons were granted by the then President of India, Smt. PratibhaPatil wherein she granted 30 pardons in 28 months where 22 of such pardons were related to heinous crimes where death penalty was awarded. Some of which includes[4]:

1. SushilMurmu[5] | Pardoned in Feb 2012      

He beheaded a nine-year-old boy in a ritual ‘sacrifice’ for prosperity to Goddess Kali in 1996. Had similarly ‘sacrificed’ his own brother.

• Molai Ram and Santosh Yadav[6] | Feb 2012

Guard and gardener to a jailer, they raped and killed his daughter within the prison premises in 1996. Santosh was serving a rape sentence then.

• ShobhitChamar[7] | Oct 2011

He and his gang gunned down male members of a family and killed two children to prevent revenge. The court noted that he rejoiced after the crime.

• Dharmender Singh and NarendraYadav[8] | June 2010

Killed a family of five in 1994 when the minor daughter resisted rape attempt. Three people were beheaded and a 10-year-old boy tossed into the fire.

These are the cases wherein the Supreme Court awarded death penalty categorizing them as “rarest of the rare cases” but the Supreme Court has no choice but to accept it. As the legendary American jurist, Oliver Wendel Holmes, pointed out, in a modern democracy, the power to punish with death rests with the judiciary and the power to spare life with the executive. “It is for the judiciary to find a person guilty or not and their job ends there,” says former Chief Justice of India, J.S. Verma. “Mercy is entirely an executive process, for the President to decide. The judiciary should stay out of it.”

The Supreme Court in RangaBilla case[9] was once again called upon to decide the nature and ambit of the pardoning power of the President of India under Article 72 of the Constitution. In this case, death sentence of one of the appellants was confirmed by the Supreme Court. His mercy petition was also rejected by the President. Then, the appellant filed a writ petition in the Supreme Court challenging the discretion of the President to grant pardon on the ground that no reasons were given for rejection of his mercy petition. The court dismissed the petition and observed that the term “pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.

This shows that the power to grant pardons is a discretionary power- exclusively exercised by the President of India with the aid and advice of Council of Ministers.Sometimes discretion opens room for debate- whether the power was lawfully exercised or not. This provision was inserted keeping in mind that even the Supreme Court’s Judges are humans and there can be instances where the human being commits any error; that error should not take the precious life of any person and hence there is an authority- President of India above the Supreme Court of India to check whether the Supreme Court’s Death penalty has been justified. This way in such cases the Executive has an upper hand over Judiciary. No doubt the intent was for the good to see that no innocent person shall suffer but there has been many times where such power is said to be abused or misused and the question arises- Why such pardon has been given to a serial hard core offender and was there any need for the same? But as the Constitution itself gives such power to the President, it cannot be stated as Unconstitutional because we as a nation believe in this statement,

“Let a 100 offenders be free, but not a single innocent person should suffer”

And in the garb of this, actually innocent people are suffering and the offenders are taking undue advantage of such powers by getting the pardons.

In the case of Ram JawayaKapur vs. State of Punjab,[10]the Court stated that, “In the Indian Constitution, therefore, we have the same system of Parliamentary Executive as in England, and the Council of Ministers consisting as it does, of the members, of the Legislature is, like the British Cabinet “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.”

Hence even though the power to grant pardons is exercised by President after the advice of Council of Ministers, if this power is exercised properly and not misused by executive, it will certainly prove useful to remove the flaws of the judiciary. Hence, it shall be kept in mind while granting death penalty and pardons that every criminal is punished for the wrongful act and that the Executive and Judiciary shall work in harmony with each other to eliminate the crime from the society as far as possible.

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[1]Dr. J.N. Pandey’s “Constitutional Law of India”

[2]The Constitution of India, 1950

[3]Dr. J.N. Pandey- Constitutional Law of India

[4]https://www.indiatoday.in/magazine/special-report/story/20120625-pratibha-patil-mercy-petitions-accepted-758790-2012-06-15

[5] Appeal (crl.)  947 of 2003

[6]Criminal Appeal No. 677 OF 2013

[7] Criminal Appeal No. 1084 of 1997

[8] 1998 CriLJ 2064

[9] 1981 SCR (3) 512

[10] AIR 1955 SC 549 at p. 556