THE ICFAI UNIVERSITY, DEHRADUN

THE ICFAI LAW SCHOOL

An Assignment on

“Mercy Jurisdiction Under Indian Constitution”

SUBMITTED BY: SUBMITTED TO:

Pankaj kumar sharma Dr. Vagish Upadhayay

BA.LLB.(Hons.) Assistant Professor,

17FLICDDN02085 The ICFAI University,

Dehradun

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INDEX:

INTRODUCTION ………………………………………………………………………… 3

CONSTITUTIONAL PROVISIONS ……………………………….…………………… 4

Reasons behind Pardoning Power ……………………………………………………….. 5

Natural Justice and Pardoning Power …………………………………………………… 8

PARDONING POWER AND JUDICIARY …………….……………………………… 12

CONCLUSION ……………………………………………………………………………. 13

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INTRODUCTION:

“A Pardon is an act of grace, proceeding from the power entrusted with the execution of
laws, which exempts the individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed.”

In earlier times it was used by the Kings for their political gains, it helped them in generating
revenues. While now in the modern day understanding and use of pardoning power is more
often associated with notions of mercy and fairness, this analysis will demonstrate that it also
remains squarely in the political arena. Called “pardons”, “amnesties”, “clemency”, “grace”,
or mercy (as in Sweden), the pardon power is included in the written constitutions of nearly
all countries.

There are various reasons for the study of this area. The President’s power to pardon deals
with providing justice which is essentially a function of the judiciary. The reasons for this
interference of the executive in the functions of the judiciary have to be explored, understood
and appreciated because it is an obvious exception to the doctrine of separation of powers
which is one of the most eminent doctrines in the Constitution of India.

The executive gives an absolute power of pardon to the executive. The likelihood of abuse of
such a power is immense. Therefore, an analysis of case law with regard to presidential
pardon is very important. Pardon is a concept based on mercy, therefore, mercy as a concept
has to be studied and the question of why mercy is vested with the executive and not with the
judiciary has to be looked into.

In the process of answering these questions, the researcher also intends to look into some
other aspects of this power. One such aspect is to look into the wordings of the Article. It is
very important to note the way the Courts interpret various Articles and what was the
intention behind framing such an Article. There are different ways in which an Article or a
Section can be interpreted.

The importance of wording of Article and its interpretation can be best understood by looking
at Article 21 of the Constitution. The nature and scope of this Article have changed
drastically after the Court has started to look at the Article in a broader manner. Similarly
looking at this article’s words helps us to understand in a better manner. In addition to this,
there are other issues as well like foreigners applying for a pardon, judicial review of pardon

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and the guidelines for the exercise of the pardon power. The researcher has made an effort to
discuss all these issues to get a complete understanding of the issue.

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 offense in British India, a pardon either
free or subject to such conditions as he thought fit.1

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.

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 offense against any law “relating to
a 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.2

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 offense 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.

1
P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71.
2
V.N Shukla, Constitutional law of India

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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.3 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 special cases. A the country would
be most imperfect and deficient in political morality without power for clemency.

The wording of the Article:

It is very important to look at three words to understand the correct interpretation of the
article. These three words are ‘punishment’, ‘sentence’ and ‘offense’. The first two words
show that the pardon by the President will save a person from the consequences of an offense
and from punishment as well. The researcher at first would like to look at the word
‘offense’. The manner in which it is used makes it quite evident that the punishment and
sentence we spoke about are in respect of the offense committed. This implies that the
punishment which is supposed to be pardoned has to be in respect of an offense and not for
any simple breach of a condition.

The reasoning that is given for the above-said statement is derived from the meaning of the
word offense as it is given in the General Clauses Act, 1897.4 It is difficult to say that the
same definition cannot be applied to Art.72 as well. It has been said that in reality, it is this

3
he Deputy Inspector General of Police, North Range, Waltair and Anr.v. D. Rajaram and Ors,
MANU/AP/0162/1960.
4
The definition that has been given in the Act is,” An act or omission made punishable by law for the time
being in force

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definition only which is used in this Article. It is said that the power of pardon that has been
granted, can be used in the following cases:

 In respect of an act which, in the eyes of law, is an offense

 Which offense is in respect of a matter over which the executive power of the Union
extends and,

 For which punishment has already been adjudged.

It is a well-established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes
of the law. Thus if a person has not been given a chance of a fair trial or a proper
investigation has not been carried out against that person, then there is no reason why that
person should be given a pardon because he is still innocent. Therefore, it is important to note
that the pardoning power can be exercised only in the case of a convicted person only.

However, in some of the cases, the Court has said that the pardon can be granted even before
conviction or trial by a Court. This principle was laid down in the case of In Re: Maddela
Yerra Channugadu and Ors.5 it was said in the case,

“The pardon power includes not only that of granting absolute and unconditional pardons
but also that of commuting a punishment to one of a different sort than that originally
imposed upon a person. It may be exercised at any time after the commission of an offense,
either before legal proceedings are begun or during their pendency, and either before or
after conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of
Bombay6 and Ramdeo Chauhan v. State of Assam7

Now let us look at another situation if the trial of a person is held not by courts but by a
tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an
offense? The general situation will be that of non-compliance of the terms of a certain
contract and therefore, termination of the same. The answer would be no, as in such a case
the term, ‘breach of conditions’ is used and not the word offense. To be more precise, the

5
(2001) 5 SCC 714.
6
AIR 1981 SC 112. The Supreme Court has, however, created an exception to the above rule in K.M.
Nanavati’s case where it held that the Governor cannot exercise his powers under Article 161 when the matter is
sub-judice in the Supreme Court during the time Article 142 is in operation.
7
(2001) 5 SCC 714.

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word offense can be used only in the case when the act has done falls within the scope of the
word offense as it is defined in the Indian Penal Code.

In addition to this, it is important to note that the person should be inquired under Code of
Criminal Procedure, because if it is done under an Act which does not characterize the act as
an offense, then the word punishment would not hold the same meaning as it is meant to be
in Art.72. This issue has been discussed in Maqbool Hussain v. State of Bombay.8

The same issue was discussed in S.A. Venkataraman v. Union of India;9 the Court, in this
case, held that:

Before Article 20(2) could be invoked, it is essential that the earlier prosecution must have
been under the Act which created that offense. After looking at these two cases it is evident
that before the question of the exercise of the power of the President to grant pardons can
arise the person to whom pardon is granted must have been awarded punishment or sentenced
by a competent court of law or judicial tribunal.

The distinction between Pardon and Amnesty:

The issue that is discussed under this head is that whether there is a difference between
amnesty and pardon. Taking the situation of revolts, in such cases, the head of the state
makes a proclamation that the rebels who surrender would be granted pardon and all their
offenses will be omitted. Can we say here that the President has the power to do so under
Art.72? If we look at the situation more closely then we can see that irrespective of the words
used by the President in the proclamation actually does nothing more than giving a promise
to the rebels.

Therefore, even if the word pardon has been used in the proclamation, in actual the action of
the head of the state does not amount to pardon from a punishment. The reason being, at the

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AIR 1953 SC 325. “the Court in this case observed that in order that the protection of Art 20(2) be invoked by
a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of
law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it
must be authorized by law to administer and not before a tribunal which entertains a departmental or
administrative enquiry. The very wording of the Art.20 would indicate that the proceedings therein
contemplated are of nature of criminal proceedings before a Court of law or a judicial tribunal, in accordance
with the procedure prescribed in the statute which creates the offence and regulates the procedure.”

9
AIR 1964 SC 375.

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time of the issue of declaration no person would have been awarded any punishment. As said
earlier that it is important to prove a person guilty before he can be granted pardon, it is
important to prove that a person has participated in a rebellion. Therefore, before granting
pardon it is important to prove in the Court that the person has participated in the rebellion.

Pardon is granted to a specified individual while the promise not to take action on the rebels
surrendering arms is addressed to an unspecified body of rebels. Such an action, therefore,
may not be termed grant of pardon in the sense in which the expression is used in Art 72.
Thus the President does not have the power of granting amnesty to rebels. This power is
vested only with the Parliament. It is important to note that power is given under Art. 72 is
not unlimited, it is only in respect to the offenses mentioned in the sub-clause (a), (b) and (c)
of clause 1 of the Article.

The President can exercise his power only in respect of the subjects to which the executive
power of the Union extends. Thus, it is clear that pardon and amnesty differ in their import
and therefore amnesty does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power:

There is a big question that whether the principles of natural justice be applied to Art. 72 and
Art.161. The researcher at first would look at the arguments favoring the application. Though
the power to grant pardon is executive, it is more quasi-judicial in nature.10 A quasi-judicial
body would impose a duty to act fairly. The Supreme Court has held that the constitutional
safeguard enshrined in Article 21extends to the executive disposal of mercy petitions.11 As a
part of the constitutional scheme, Article 72 is subject to the discipline of Article 21.
Therefore, the accused should have a minimal right to fair hearing.

On the other hand, there have been cases in which the Court has said against the application
of natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab12 that
the power of the government is executive in nature and the principles of natural justice cannot
be grafted thereon by means of judicial innovations and activism. Since the principles of
natural justice have been applied at each stage of the sentencing procedure, it may
legitimately be done away with at the executive stage.

10
R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.
11
.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.
12
1987 Cri LJ 1088.

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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 viewpoints. It has been observed by the Supreme Court that a period of
anguish and suffering is an inevitable consequence of the 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 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.13 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 inquiry
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.

The Case of Presidential Self-Pardons:

This is another issue which needs to be looked at, whether the executive has the power to
grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine
the public’s confidence in the Presidency and the Constitution. It is also against the principles
of natural justice, that a person should judge himself. In the case of Calder v. Bull,14 the
Supreme Court expressed its view against allowing a person to be self-judge.

13
Triveniben v. State of Gujarat, (1989) 1 SCC 679.
14
3 U.S. (3 Dall.) 386 (1798).

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In one of his writings Madison wrote that “No man is allowed to be a judge in his own cause
because his interest would certainly bias his judgment, and not improbably, corrupt his
integrity.”

The same principle was followed later in the case of Spencer v. Lapsley15 in addition to these
judgments there have been various other cases which unanimously state the principle that no
man shall be a judge in his own case. The case indicates that not only is this a venerable
principle of philosophy and history, but it is also an essential part of the structure of our
constitutional government.

Like other issues, this one also has the other side of the argument where one can argue that
self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the
President has to act on the advice of the council of ministers while granting the pardon. Now,
since the council of ministers can be tried and put on trial for a criminal offense the question,
which arises, is whether they can pardon themselves.

Article 72 of the Constitution creates no exception to the President’s power to pardon in order
to invalidate self-pardons. Therefore, theoretically, a self-pardon by the council of ministers
is very well possible.

Foreigners and the Pardoning Power:

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of
Paragraph A of the “Procedure regarding petitions for mercy in death sentence cases.”
Petitions for mercy submitted on behalf of a convict under sentence of death shall be dealt
with mutatis mutandis in the manner provided by these instructions for dealing with a petition
from the convict himself.

The petitioner on behalf of a condemned convict shall be informed of the orders passed in the
case. If the petition is signed by more than one person, it shall be sufficient to inform the first
signatory. The convict himself shall also be informed of the submission of any petition on his
behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners
making petition for mercy to the President of India on behalf of any of the convicts. Looking
to the very nature of the power to grant pardon or clemency, applications or petitions for

15
61 U.S. (20 How.) 264, 266 (1857).

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mercy by foreigners will have to be considered on the same footing as those submitted by
Indian citizens. In light of the above, it can be inferred that there is nothing to bar a foreigner
from applying for mercy.

Article 72 and the Impact of other Statutes:

The conflict of Art .72, with another statute, came before the Court in the case of Maru
Ram v. Union of India.16 The issue, in this case, was, whether S. 433-A of Criminal
Procedure Code, would affect the Art.72 and Art.161 of the Constitution.

It was argued that since Sections 432 and 433-A, are statutory provisions, and modus
operandi of the Articles 72 and 161, therefore it would render Article 433-A ineffective. The
reason for this was that, it was different from the other two sections and therefore it would be
against the Constitutional Provisions. However, the court held that although the powers under
Art. 72 and Art. 161 and Sections 432 and 433-A may be similar, but they are not identical.

This decision was later affirmed in Ramdeo Chauhan v. State of Assam,17 it was held that
the power under Article 72 and Article 161 of the Constitution is absolute and cannot be
hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by
any prison rules.

A similar question came up before the Court in the case of Madhav Shankar
Sonawane v. State of Maharashtra,18 here the issue was that whether Section 307 of the
Indian Penal Code, read with Section 34 of the Indian Penal Code, which has a sentence of
minimum of 25 years after conviction, places a limitation on the exercise of power under
Art.72.

The Bombay High Court in the above case held that it is not allowed to the Courts to hold
that a convict shall have to undergo a minimum period of the sentence even with an exercise
of constitutional jurisdiction by high constitutional functionaries under Article 72 and 161.
After looking at all these cases, it can be concluded that in no situation can any legislation
place a limitation on the power under Art. 72 and Art. 161.

Judicial Review of Article 72:

16
AIR 1980 SC 2147.
17
(2001) 5 SCC 714
18
1982 (1) BomCR 702

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Supreme Court in Maru Ram v. Union of India, said that the power of pardon, commutation,
and release under Art. 72 and Art.161, “ shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play
power.”

In Kehar Singh v. Union of India, it was said that the order of the President cannot be
subjected to judicial review on its merits except within the strict limitations defined in Maru
Ram’s case. Looking at these cases, the Court did not actually call for judicial intervention.
However, in Swaran Singh v. State of U.P, the Supreme Court invalidated the remission of
sentence by the Governor because some material facts were not brought to the knowledge of
the Governor. Not only this, the Supreme Court had asked the President to reassess his
decision when it was of the view that the decision of the President was totally arbitrary and
unfair.

In another case the Governor decided to grant pardon to 66 life convicts and there was a
petition under Article 226 by 10 other convicts claiming that their cases satisfied the criteria
relied upon by the Governor in granting concession, it was held that it is for the Governor, on
the suggestions of concerned authorities, to deal with remissions of punishment or to
commute the sentence.

It was held that the High Court cannot appropriate the power of the Governor in a petition
under Article 226 of the Constitution and grant pardon to the petitioners. It is clear from the
above case that the Court cannot usurp powers to grant pardon itself based on the criterion
followed by the President and can in no circumstance reverse the decision of the President.
Therefore we can conclude that the Courts can exercise judicial review over the exercise of
pardon in a very limited sense to correct an unfair or arbitrary decision.

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 imposes on, the accused.

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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 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. 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.

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 the 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.

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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 one’s own case. Meaning that there should not be any self-
pardoning.On the part of the executive. The reason for this being that in such a case there
would be 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 the 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 bias is reduced. There is no need for any guidelines to be set
as the scope will differ from case to case basis.

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