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Pardoning power of President

Updated: Jul 5

Article 72 of the Constitution of India delineates the pardoning power vested in the President. This provision outlines the scope and circumstances under which the President can exercise this authority. The power of pardon is a significant constitutional prerogative that serves as a check on the judiciary and ensures fairness and mercy in the administration of justice.


Pardoning Power of president

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CONSTITUTIONAL PROVISIONS

Article 72 empowers the President to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offense in specific cases. These cases include situations where the punishment or sentence is determined by a court martial, where the offense violates laws within the Union's executive power, and where the sentence is death.


The provision highlights the President's authority to intervene in matters pertaining to the military justice system. In cases where the punishment or sentence is imposed by a court martial, the President retains the discretion to pardon, commute, or suspend the sentence. This underscores the President's role as the supreme commander of the armed forces and ensures that justice is tempered with mercy within military tribunals.


Furthermore, Article 72 extends the President's pardoning power to offenses against laws falling under the Union's executive jurisdiction. This provision underscores the federal nature of India's governance system, where certain offenses may transcend state boundaries or require uniform application across the nation. By allowing the President to intervene in such cases, the Constitution ensures consistency and coherence in the application of executive power and justice.


  • The most profound aspect of the pardoning power conferred upon the President is its application in cases involving death sentences. The Constitution recognizes the gravity of capital punishment and acknowledges the need for a safeguard against miscarriages of justice or undue severity. 


Therefore, Article 72 grants the President the authority to review death sentences and exercise clemency where warranted. This provision reflects the humanitarian values embedded in India's constitutional framework and underscores the commitment to upholding the dignity and rights of every individual.


It is noteworthy that Article 72 explicitly stipulates that the President's pardoning power does not override certain other authorities.


  • For instance, officers of the Union armed forces retain their authority to suspend, remit, or commute sentences passed by court martials. Similarly, state executives maintain their prerogative to intervene in cases involving death sentences. This provision ensures a balance of power between different branches of government and prevents any undue concentration of authority.


The provision also establishes the procedural aspect of the pardoning power. It specifies that the President acts in this matter on the advice of the Home Minister. This procedural requirement underscores the principle of executive accountability and ensures that decisions regarding pardon or clemency are made after due deliberation and consultation within the government.


Scope Of Pardoning Power Of The President


The pardoning power of the President of India, as provided in the Constitution, is a significant constitutional prerogative outlined in Article 72. This provision grants the President extensive authority to grant pardons, reprieves, respites, or remissions of punishment, either before or after conviction, for individuals convicted of offenses.

 

This power extends across the entirety of India and is considered a vital aspect of the constitutional framework, reflecting principles of justice, mercy, and executive responsibility.


Article 72 of the Constitution of India delineates the scope and nature of the President's pardoning power. It empowers the President to exercise this authority in various circumstances, including before or after conviction, reflecting a similar provision found in other democratic nations like the United States and Britain. 


In the American context, the President possesses the authority to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Conversely, in Britain, the Crown holds the prerogative to grant pardons, typically acting on ministerial advice.


In interpreting the nature of the President's pardoning power, the Supreme Court of India has aligned with the American perspective over the British one. This perspective views the power of pardon as an integral component of the constitutional framework, rather than a mere act of royal prerogative. The Court has clarified that the President's exercise of this power is subject to judicial review, ensuring its conformity with constitutional principles and norms.


One significant case that elucidates the scope of the President's pardoning power is Kehar Singh v. Union of India. In this case, Kehar Singh, convicted for the assassination of Prime Minister Indira Gandhi, sought pardon through his son under Article 72 of the Constitution. Despite his conviction by the highest court, Kehar Singh's plea for pardon was considered by the President. The Court ruled that the President possesses the authority to independently scrutinize evidence and arrive at a different conclusion regarding the guilt and sentence of the accused. This underscores the President's constitutional responsibility and discretion in exercising the power of pardon.


The Court further emphasized the wide amplitude of the President's power under Article 72, which can accommodate diverse cases and circumstances. It clarified that while the President formally holds the power to pardon, he exercises it on the advice of the concerned Minister, typically the Home Minister. This underscores the collaborative nature of executive decision-making within the Westminster system, wherein the President acts as an abbreviation for the Central Government.

Over time, the exercise of the pardoning power has raised various questions before the courts, including whether the President exercises personal discretion or acts merely as a constitutional head, whether he should grant a personal hearing to the convicted or their lawyer, and whether the exercise of this power is subject to norms such as Article 14 of the Constitution. Judicial clarifications have established that the President exercises this power in consultation with the Cabinet, and his decisions are subject to judicial review.


The pardoning power of the President under Article 72 embodies a crucial aspect of the constitutional scheme, balancing the principles of justice, mercy, and executive accountability. Through its interpretation and application by the judiciary, this power ensures the protection of individual rights and the integrity of the legal system while upholding the foundational principles of democracy.


ORAL HEARING DURING PARDON PROCEEDINGS


In the context of pardoning petitions under Article 72 of the Indian Constitution, the question of whether a condemned person has a right to insist on an oral hearing before the President has been addressed by the Supreme Court. In the case of Kehar Singh, the Supreme Court clarified that there is no inherent right for the condemned person to demand an oral hearing before the President concerning their petition invoking the powers under Article 72. 


The decision to grant an oral hearing lies within the discretion of the President, and it is for the President to determine the manner in which the case will be dealt with. The proceeding before the President is deemed to be of an executive character, and when the petitioner submits their petition, it is incumbent upon them to include all necessary information for the petition's proper disposal.


Moreover, the Supreme Court has deliberated on the necessity of establishing guidelines for the exercise of the power to pardon by the President. In the case of Maru Ram, the Court expressed a favorable view towards the establishment of such guidelines to prevent any allegations of arbitrary exercise of power. The Court opined that it would be prudent for the government to formulate rules for its own guidance in the exercise of the pardon power, while also maintaining a certain degree of flexibility to address unique situations or sudden developments. 


This approach would mitigate the risk of discrimination, ensuring consistency and fairness in the granting or refusal of pardons. The Court emphasized that establishing guidelines would prevent scenarios where individuals convicted and sentenced under similar circumstances face disparate treatment based on irrelevant factors such as religion, caste, color, or political loyalty.


Therefore, the rulings in Kehar Singh and Maru Ram underscore the discretionary nature of oral hearings in pardoning petitions and highlight the importance of establishing guidelines to ensure the fair and equitable exercise of the President's pardoning power. These decisions reflect the judiciary's commitment to upholding principles of justice, fairness, and non-discrimination in the execution of constitutional powers.


GUIDELINES FOR EXCERCISING PARDONING POWER OF PRESIDENT


In the context of exercising the pardoning power conferred upon the President under Article 72 of the Indian Constitution, the issue of whether the government has formulated uniform standards or guidelines for its exercise has been a matter of legal contention. This question was brought before the Supreme Court in the case of Kuljeet Singh v. Lt. Governor, where it was argued that the President's power under Article 72 is coupled with a duty and must be exercised fairly and reasonably. The Court acknowledged the significance of the question, recognizing its far-reaching importance and the need for careful examination.


However, in the subsequent proceedings, the Court did not thoroughly examine this question and instead left it open. The writ petition was dismissed on the grounds that, given the circumstances surrounding the murder committed by the accused, the only possible sentence was death, and there was no reason to interfere with that sentence. The Court concluded that in refusing to commute the death sentence to a lesser sentence, the President did not exceed his discretionary power under Article 72.


As a result, the issue of establishing standards and guidelines for the exercise of the power under Article 72 remained unresolved. However, in the case of Kehar Singh, the Supreme Court adopted a broader interpretation of the President's pardoning power and shifted its stance on the question of laying down guidelines. 


  • The Court asserted that there is sufficient indication in the terms of Article 72 and in the historical context of the power enshrined in the provision, as well as in existing case law, to guide the exercise of this power. It emphasized that specific guidelines need not be explicitly spelled out.


  • The Court recognized the inherent challenges in establishing precise and clearly defined guidelines for the exercise of the pardoning power under Article 72. Given the wide amplitude of Article 72, which contemplates myriad kinds and categories of cases with varying facts and situations, the Court acknowledged the limitations in formulating rigid guidelines. 

It highlighted that the exercise of the pardoning power may be profoundly influenced by prevailing circumstances and the passage of time, making it difficult to prescribe definitive guidelines.

Therefore, while the question of establishing uniform standards or guidelines for the exercise of the pardoning power under Article 72 remained unresolved in specific terms, the Supreme Court's stance in Kehar Singh underscored the inherent flexibility and discretion vested in the President in exercising this constitutional power. 

The Court recognized the complexity and wide-ranging nature of cases that may come under the purview of Article 72, indicating that a rigid set of guidelines may not be feasible or appropriate in all circumstances. Instead, the Court affirmed the need for a contextual and case-specific approach guided by the principles embedded in Article 72 and informed by historical precedents and existing case law.


JUDICIAL REVIEW OF PARDONONG POWERS


The question of whether there can be judicial review of the exercise of the pardoning power by the President has been a recurring issue before the Supreme Court of India. In the case of G. Krishna Goud v. State of Andhra Pradesh, the Court highlighted the significance of Article 72, which vests the highest executive with the jurisdiction to remit, reprieve, respite, commute, and pardon criminals. 

However, the Court emphasized that all public power, regardless of the dignitary wielding it, must be exercised in good faith, with intelligent and informed care, and honestly for the public welfare. The Court asserted that the refusal of commutation must not be motivated by malignity or abuse of power.

Similarly, in the case of Maru Ram, the Supreme Court underscored that although the power of pardon is wide-ranging, it cannot be exercised arbitrarily. The Court emphasized that no constitutional power should be exercised arbitrarily or mala fide, and guidelines for fair and equal execution are essential. 

  • The Court invoked Article 14 of the Constitution, which prohibits arbitrariness, emphasizing that the power to pardon must be informed by the finer canons of constitutionalism.

  • While the Court acknowledged that considerations for the exercise of the pardoning power may be myriad and variable, it asserted that if the power is exercised on irrational, irrelevant, discriminatory, or mala fide considerations, the courts could intervene if necessary. 

The Court recognized grounds such as political vendetta or party favoritism as factors that could render the exercise of the constitutional power vulnerable to judicial review. The Court suggested that making rules for the guidance of the government in exercising the pardon power would exclude the vice of discrimination and ensure fair and equitable treatment.

However, in the subsequent case of Kehar Singh, the Court altered its stance on laying down specific guidelines for the exercise of the pardoning power. It stated that there is sufficient indication in the terms of Article 72, historical context, and existing case law, and therefore, specific guidelines need not be spelled out. 

The Court emphasized the wide amplitude of Article 72, which contemplates a myriad of cases with varying facts and situations, making it challenging to lay down precise and clearly defined guidelines. The Court asserted that the function of exercising the pardoning power enjoys high status in the constitutional scheme and may not lend itself to rigid guidelines.

Furthermore, in the case of Satpal v. State of Haryana, the Governor's order granting pardon was set aside because the Governor had not been properly advised with all the relevant materials, illustrating the importance of proper procedure and advice in the exercise of the pardoning power.

While the Supreme Court has acknowledged the possibility of judicial review of the exercise of the pardoning power under Article 72, it has also recognized the inherent challenges in laying down specific guidelines due to the wide amplitude of the provision. The Court has emphasized the need for the exercise of the power to be informed by constitutional principles and undertaken in good faith for the public welfare.


Limited parameter

In conclusion, the Supreme Court's rulings in Kehar Singh and Maru Ram have established the parameters within which the exercise of the pardoning power by the President under Article 72 of the Indian Constitution is subject to judicial review. While the President possesses a wide latitude of discretion to consider various factors and facets of a case, the exercise of this power is not absolute and is subject to scrutiny by the courts.


The Court has emphasized that the President's decision cannot be subjected to judicial review on its merits except within the strict limitations defined by precedent. Specifically, the courts will intervene only if the exercise of the pardoning power is found to be mala fide, arbitrary, or discriminatory in nature.


Furthermore, the Court has underscored the importance of considering factors such as religion, caste, or political loyalty as irrelevant and prohibited in the exercise of the pardoning power. It has also highlighted that the power of executive clemency is not solely for the benefit of the convict but must also take into account the impact on the victim's family, society, and set a precedent for the future.


Therefore, while the President retains significant discretion in exercising the pardoning power, it is not beyond judicial scrutiny. The courts will intervene if the exercise of this power deviates from constitutional principles or is tainted by improper motives. Ultimately, the rulings in Kehar Singh, Maru Ram, and subsequent cases reaffirm the delicate balance between executive discretion and judicial oversight in matters of pardon and clemency.

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