The term “pardon” has been defined as an act of mercy by which the offender is absolved from the penalty which has been imposed on him. In other words, grant of pardon wipes off the guilt of the accused and brings him to his original position of innocence as if he had never committed the alleged offence.
The grant of pardon may, however, be absolute or conditional. Under conditional pardon, the offender is let off with certain conditions, the breach of which will result into revival of his sentence and he shall be subjected to the unexhausted portion of the sentence.
Pardon as a mode of mitigating the sentence of accused has always been a controversial issue since long. Some authorities consider its retention in penal system essential as it may substantially help in saving an innocent person from being punished due to possibility of miscarriage of justice or in case of doubtful conviction.
Moreover, the hope of being pardoned itself serves as an incentive for the convict to behave himself well in the prison institution and thus helps considerably in solving the problem of prison discipline. During the medieval period, pardon was extensively used as a method of reducing overcrowding in prisons during war, political upheaval and revolt.
Those who reject pardon as an effective measure of mitigating sentence argue that the power to pardon is often misused by the executive. There is a possibility that the convict may secure his release from prison by exerting undue influence on the executive authority. Another evil that ensues as a result of ‘pardon’ as a measure of undoing the guilt of the convict is that it has an adverse effect on prisoners because they invariably try to secure a ‘pardon’ rather than reforming themselves.
Despite these shortcomings, the greatest advantage of pardoning power of the executive lies in the fact that it is always preferable to grant liberty to a guilty offender rather than sentencing an innocent person.
The power to grant pardon or commute a sentence pronounced by a court of law is not something that the Emperors with divine right enjoyed in earlier times. The modern democracies in the world with judicial systems that are above reproach, have vested in their Executive head, the power to grant pardon or clemency.
For instance, the American Constitution gives President the power to grant reprieve or pardon for offences against the U.S., except in case of impeachment. However, this power is available only in case of violation of federal law and pardon in case of violation of a State law has to come from the Governor of the State concerned.
In Britain, the constitutional monarch can pardon or show mercy to a convicted person on the ministerial advice. In Germany, Italy, Russia and France, the power to grant pardon and commute sentences rests with the President. In Canada, pardons are considered by the National Parole Board under the Criminal Records Act etc.
In most of these countries, there is a provision for judicial review of the pardon granted in the event of grounds for pardon being found unsatisfactory. In U.S.A., a pardon may be held void if it appears that the pardoning power was exercised on the basis of wrong information.
Thus, “a pardon procured by false and fraudulent representations or by intentional suppression of the truth is void, even though the person pardoned had no part in perpetrating the fraud.” The modern practice of pardoning the convicts is said to be derived from the British system m which it was a Royal prerogative of the King to forgive. It also finds mention in code of Hammurabi, a series of edicts that were developed in Babylon nearly 4,000 years ago.
Explaining the law relating to pardon in U.S.A., Chief Justice Taft in Ex parte Phillip Grossman, observed, “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. 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 monarchies, to vest power to ameliorate or avoid particular criminal judgments.”
In India, the power to grant pardon is conferred on the President of India and the Governors of States under Articles 72 and 161 of the Constitution of India. Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases. The Article reads as follows:
72 (1) the President shall have the power to grant pardons, reprieves, respites or remission 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.
Article 161 empowers the Governor of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of person convicted of an offence against a law’ relating to a matter to which the executive powers of the State extends.
In Ìàru Ram v. Union of India} the Constitution Bench of the Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal, the Supreme Court reiterated its earlier stand in Maru Ram’s case and observed as follows:
“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.”
In the instant case, the Deputy Secretary, Judicial Department, Government of West Bengal informed the Court that after examining and considering the prayer the State Government rejected it, thereafter, it was transmitted to the Governor only because it was addressed to him, and therefore, the Governor in his turn, rejected the convict’s prayer which was duly communicated to the convict.
Later, convict’s special leave petitions having been dismissed by the Supreme Court, he filed a mercy appeal to the Hon’ble President of India under Article 72 of the Constitution but that too was rejected by the President vide his order dated 4th August 2004. The appellant then applied to the Supreme Court for review of President’s decision of rejection of his appeal which the Court declined on August 12, 2004. Consequently the convict Dhananjoy was hanged till death on 14th August 2004 in Central Jail, Alipore in West Bengal.
The Supreme Court, in Rang a Billa case was 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, the death sentence of one of the appellants was confirmed by the Supreme Court. His mercy petition was also rejected by the President.
Thereupon, the appellant filed a writ petition in the Supreme Court challenging the discretion of the President of India to grant pardon on the ground that no reasons were given for the rejection of his mercy petition. The Supreme Court dismissed the petition and observed that the term “pardon” itself signifies that it is entirely a discretionary remedy and the grant or rejection of it need not be reasoned.
The Supreme Court was once again called upon to decide the justiciability of President’s power to grant pardon, reprieve or remission or to suspend, remit or commute the sentence of death passed against the condemned prisoner under Article 72 of the Constitution in Kehar Singh v. Union of India.
Reiterating its earlier stand, the Apex Court held that grant of pardon by the President is an act of grace and therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusively of administrative nature, it is not justiciable. The President can scrutinise evidence on record and may come to a different conclusion from that of the Court regarding the guilt or sentence of the accused but his decision in this regard cannot modify the Court’s judicial record.
Again, the condemned prisoner is not entitled to oral hearing from the President as the matter is entirely within the discretion of the President under Article 72 of the Constitution. In the instant case, the mercy appeal of the accused Kehar Singh was rejected by the President of India.
Quoting the observations of Justice Holmes in this case, the Apex Court held:
“A pardon in modem time is not a private act of grace from an individual happening to possess power; it is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed. This constitutional pardon is given to those, upon whom punishment inflicted would cause greater harm to society than their release.”
Experience has shown that pardon is usually administered to persons who are punished for disregard of political or religious affiliations. The psychological and emotional condition of the criminal is taken into consideration before granting him pardon and he is admitted to this clemency only if his institutional record shows that there are better chances of his reformation after release. Commenting on this point J. L. Gillin observed,
“If the pardons are administered with care and solely to correct injustices, they certainly do not diminish respect for law. They, on the other hand, will infuse confidence in the machinery of justice”.
In K.M. Nanavati v. State of Maharashtra, the accused killed his wife’s paramour in 1960. The Bombay High Court, sentenced him to life imprisonment. He appealed against his sentence to the Supreme Court. Meanwhile, the Governor granted suspension of his sentence. This power of the Governor to suspend life sentence was challenged before the Supreme Court on the ground that under Article 161, the Governors do not have the power to do so during pendency of the matter before the Supreme Court.
The Apex Court classified that the power of the Governor to suspend the life sentence is subject to rules framed by the Supreme Court under Art. 145 of the Constitution, which provides that once appeal against suspension of sentence is filed before the Supreme Court it is mandatory to keep the accused under police custody The order of the Governor, therefore, is liable to be quashed.
The Governor can use his power to suspend or remit the sentence so long as it is not subjudice before the Supreme Court. In other words, the Governor may exercise his power under Article 161 so long as an appeal against the mercy petition is not filed before the Supreme Court and not thereafter.
In Purulia Arms-drop case, (1995) a British national Peter Bleach was sentenced to life imprisonment for being involved in the notorious arms-drop over Purulia in Bihar from AN-26 aircraft. The then NDA government came under diplomatic pressure and invoked “public interest”, directing President of India to grant him pardon. United Kingdom on its part, clarified that the pardon was more on compassionate grounds than on merits.
It must be stated that the system of parole which is nothing but a modified form of conditional pardon has mitigated the risks involved in pardoning the offender outright. It is, however, suggested that a pardon pre-conditioned by a system of parole appears to be an ideal policy best suited to both the law-abiders as well as the law-breakers. It would further be wise to relieve the executive authority of this arduous task of administering pardons and this function be assigned to the agency of Parole Board. This has already been done in some of the American States.
In Swaran Singh v. State of U.P., the Governor of U.P. had granted remission of the life sentence awarded to the Minister of State Legislature of Assembly upon being convicted for the offence of murder. The Supreme Court, however, interdicted the Governor’s order and observed that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer canons of constitutionalism”, such order cannot get the approval of law and in such cases the “judicial hand must be stretched to it”. The Supreme Court held that the order of the Governor was arbitrary and hence needed to be interdicted.
In Gentela Vijayvardhanrao v. State of Andhra Pradesh} the two appellants were dalit boys, who set afire a bus for the purpose of robbery. This resulted in the death of 23 passengers and serious bums to a number of other passengers. Taking into consideration the barbarity of crime, depravity in the manner of its execution, the number of victims and greed as aggravating factors, they were sentenced to death and the sentence was confirmed by the High Court.
Even while mercy petitions were pendings human rights groups took to campaigning against the death sentence awarded to the two boys. Attempts were made to bring back the issue to the Supreme Court by way of writ petitions, but without success. The President of India, however, deemed it a fit case to grant pardon and commuted the death sentence of both the boys to one of imprisonment for life.
It must be stated that in the absence of the requirement to give reasons for such decision, it is difficult to know what exactly weighed with the President in commuting the sentence. If such decisions were made public, it would help people to know the factors which made President to commute the sentence, which would provide guidance for future.
Otherwise the exercise of power of clemency will give rise to the reasonable apprehension that it is capable of being arbitrarily used, more so because the President in exercise of this power acts on the advice of the Cabinet hence the possibility of political considerations weighing with the decision cannot be ruled out.
This issue came up for consideration before the Supreme Court in the Parliament attack accused Mohammad Afzal’s case wherein the supporters sought clemency on the ground that the day of Afzal’s execution i.e. 20th October is falling within the month of Ramzan. In fact, the judgment in his case was also countered on the ground that he did not get fair trial. Significantly, Afzal’s death sentence was upheld by three courts including the Supreme Court which had let-off a co-accused and reduced the sentence of another accused.
The near relatives and kins of the victims of the said attack on Indian Parliament on 13th December, 2001 filed petitions opposing the move to secure clemency for Afzal Guru.
Disposing of the petition of the widow of Presidential reprieve for Afzal the Apex Court ruled that, “undue considerations of caste, religion and political loyalty are prohibited from being grounds for grant of clemency. The Court observed that undoubtedly the President of India and the Governors of States have the constitutional right to grant clemency but this power should be exercised by them in the interests of public welfare.
A Bench comprising Justices Arijit Pasayat and S.H. Kapadia, while quashing Andhra Pradesh Governor’s decision of 2005 to reduce Gowru Venkata’s prison term by seven years, held that it was a well set principle that a limited judicial review of exercise of clemency powers was available to the Supreme Court and High Courts. Specifying the grounds for granting clemency, the Bench ruled that orders passed by the President or the Governor, as the case may be, granting clemency can be challenged on the following grounds:—
1. That the order has been passed without application of mind;
2. That the order is mala fide;
3. That the order has been passed on extraneous or wholly irrelevant considerations;
4. That relevant materials have been kept out of consideration; and
5. That the order suffers from arbitrariness.
In Gowru Venkata’s case, his wife was elected as an M.L.A. on the Congress ticket and two days after her election, she made a plea for parole of her husband who was undergoing imprisonment on a murder charge. Parole was granted by the then reddy government five days later, i.e., on May 19, 1994. The parole period was extended four times.
On October 10, 1994, the wife of Gowru Venkata made a representation to the then Andhra Pradesh Governor Shri Sushil Kumar Shinde seeking pardon for her husband. On August 11, 2005, the Governor, exercising his power under Article 161 of the Constitution, granted remission of sentence.
The Supreme Court, in setting aside the remission of sentence, favorably viewed the submissions made by amicus curiae and former Attorney-General Shri Soli Sorabjee, who said that it was desirable that President or a Governor, while granting pardon or remission of sentence, should give reasons to indicate that relevant materials were considered in the exercise of constitutional power.
The Bench held that the process of consideration by the then Governor was faulty and also expressed its surprise that in the clemency plea, the convict had the audacity to mention that he was a “good Congress worker” and that he has been falsely implicated in the murder of an activist belonging to rival TDP Party.
Obiviously the question of his being a ‘good Congress worker’ has no relevance to the objects sought to be achieved. The Bench criticised the State bureaucracy for giving favourable reports to the Governor to facilitate relief to the ruling party’s activist.
The Supreme Court brushed aside the plea emphasising that the matter had been heard by three courts which had unanimously come to the conclusion about Gowru Venkata’s guilt.
In separate but concurring judgments, the Bench observed, “the power of executive clemency is not for the benefit of the convict only. While exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for future.”
The order passed in Gowru Venkata’s case is seen as potentially having direct bearing on the Afzal’s case. Those who are supporting grant of pardon to Afzal, notably, the Left Parties and different out-fits in the J. & K. Valley has argued that Afzal’s execution would give fillip to militancy.
It may be stated that more than twenty-nine mercy petitions are pending before the President (as on October 16, 2010) including those filed by two accused in the former Prime Minister, Rajiv Gandhi assassination case and a petition from 71 year old Shobhit Chamar who had killed an upper caste adversary in Bihar. Earlier, the plea of mercy filed by Dhananjoy Chatterjee was rejected by three President’s in succession and he was finally hanged to death on 14th August, 2004 in the Alipore Central Jail.
The Amnesty International in its Report of 2009 has stated that the number of persons who were sentenced to death in India during the period 2001 to 2007 was a follows:
YearNo. of Persons Sentenced to Death
However, no official figures are indicated as to the actual execution of sentence of death during this period.
The General Assembly of UN passed a resolution for abolition of death sentence by the member nations in December 2007, but India voted against it and refused to drop capital punishment from its statute book.
More recently, the prime accused of the Bombay Taj Hotel blast case (on 16-11-2008), Azmal Kasab, was sentenced to death by the Special Court, Bombay on May 6, 2010 and his death sentence has been confirmed by the Bombay High Court on February 21, 2011. He may new prefer an appeal against this sentence before the Supreme Court.