Pardon

Definition

Pardon is defined as to officially say that someone who is guilty of a crime will be allowed to go free and will not be punished. Pardon, in law means release from guilt or remission of punishment. An act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.

The Clemency jurisdiction bestows upon the President of the Indian Union and the Governor respectively, a unique function called the “pardoning power”. A pardon is an act of grace and cannot be deemed as a matter of right. The term was widened in the field by Field J., in Ex Parte Garland: When pardon is full, it releases the punishment and blots the existence of the guilt, so in the eye of the law the offender is as innocent as if he had never committed the crime...it restores him, as it were, a new man and gives him a new credit and capacity. The Court has further opined that the pardoning power granted to the President as well as the Governor was historically a sovereign power, politically a residuary power and humanistically an aid of intangible justice.

^{Official Documents}

^{An advisory issued by the Ministry of Home Affairs i.e., No. VII-17013/1/2014/-PR, set the official guidelines for safeguarding the interests of death row convicts.}

^{a)       Procedure in placing the mercy petition before the President}

^{As and when a mercy petition is received or communicated by the State Government after its rejection by the Governor, all necessary materials such as Police records, judgments of the trial court, High Court and the Supreme Court and all other connected documents should be called at once fixing a time limit without fail for rendering the same to the Ministry of Home Affairs in one-go and not in a piece-meal manner.}

^{b)      Communication of rejection of mercy petition by the Governor}

^{As a convict has a constitutional right under article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other available mode of communication.}

^{c)       Communication of rejection of mercy petition by the President}

^{Similarly the convict has a constitutional right under article 72 to make a mercy petition and hence the rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.}

^{Government Report}

^{The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive has discharged its mercy powers. When even exercise of mercy powers is sometimes vitiated by gross procedural violations and non-application of mind, capital punishment becomes indefensible.[4]}

^Caselaws

^{a)   State (Govt. of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121.}

^{The Supreme Court clarified that ‘Reprieve’ means a stay of execution of sentence, a postponement of capital sentence. Respite means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433-A of the Code or by any prison rules. But the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.}

^{b)      Kehar Singh v. Union of India (1989) 1 SCC 204}

^{The Supreme Court held that the President in exercise of power under Art. 72 is entitled to 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 Art. 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one describing the grant of the relief 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 imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains in-tact, and undisturbed.}

^{c)       Shatrughan Chauhan v. Union of India (2014) 3 SCC 1.}

^{The Supreme Court addressed the issue of inordinate delays in the disposal of mercy petitions for death row convicts. The Court held that prolonged delays in deciding mercy pleas, particularly when caused by the executive, can cause immense mental agony to the convict, amounting to torture. Such delays could be grounds for commutation of death sentences to life imprisonment. The Court emphasized that even death row convicts are entitled to protection of their fundamental rights, including the right to life and dignity under Article 21 of the Constitution. It also laid down guidelines to ensure the expeditious disposal of mercy petitions and clarified that factors like the convict’s mental illness or solitary confinement should be considered when deciding on commutation. Consequently, the death sentences of 15 convicts were commuted due to unjustifiable delays in their cases}

^{d)      Mahendra Nath Das v. Union of India (2013) 6 SCC 253.}

^{This case dealt with the issue of excessive delay in the execution of a death sentence due to the prolonged processing of the convict's mercy petition. The Court observed that an undue delay in deciding a mercy plea—if it causes mental anguish and suffering to the convict—violates the right to life under Article 21 of the Constitution. In this case, Mahendra Nath Das’s mercy petition remained pending for over 12 years. The Court held that such an extraordinary delay rendered the death sentence inhumane and commuted it to life imprisonment. The decision reinforced the principle that procedural delays in mercy petitions should not undermine the dignity and rights of death row convicts, stressing that the executive must act with reasonable promptness in such matters.}

^{Judicial Review of Mercy Petitions - Pre Maru Ram and Post Maru Ram}

^{Before Maru Ram v. Union of India}

^{The judicial review of mercy petitions was largely restricted. Mercy petitions, filed under Articles 72 and 161 of the Indian Constitution, were considered the prerogative of the executive, and courts generally refrained from intervening in the President's or Governor's decision-making process. The belief was that these clemency powers were beyond judicial scrutiny, even if the decision was arbitrary or unfair.}

^{Maru Ram marked a shift in this perspective. The Supreme Court held that while the executive’s power to grant mercy was significant, it was not entirely immune from judicial review. The Court ruled that judicial oversight could be invoked if there was evidence of arbitrariness, discrimination, or mala fide intentions in the exercise of mercy powers. This created a framework for courts to examine whether the executive had acted in accordance with constitutional principles.}

^{Post-Maru Ram}

^{The courts increasingly became more active in scrutinizing the process of mercy petitions, particularly in cases involving inordinate delays. In cases like Shatrughan Chauhan and Mahendra Nath Das, the Supreme Court commuted death sentences to life imprisonment on the grounds that executive delays in deciding mercy petitions violated the convicts' rights under Article 21, reinforcing that the exercise of mercy powers must adhere to constitutional fairness and due process.}

^{Difference in Article 72 and Article 161, the Powers of President and the Governor}

^{In Kehar Singh v. Union of India (1989) (1) SCC 204 and Maru Ram v. Union of India AIR 1980 SC 2147, the Supreme Court clarified the distinction between the pardoning powers of the President under Article 72 and the Governor under Article 161. In Kehar Singh, the Court emphasized that the President’s clemency power is broader, covering offenses under Union laws, including death penalties. It also noted that the President can pardon a death sentence even after judicial review, with the power only subject to scrutiny if exercised arbitrarily.}

^{In Maru Ram, the Court examined both articles, highlighting that while both the President and Governor can grant pardons, the President’s power applies to Union law offenses and all punishments, including death sentences. In contrast, the Governor’s authority is limited to state law offenses, and they cannot pardon death sentences without the President’s involvement.}

^{Thus, the President’s clemency powers are more comprehensive, especially in cases involving death sentences, while the Governor’s powers are restricted to state law offenses.}

^{Legal Provision}

^{Under BNSS Section 472(1), convicts can file mercy petitions within 30 days after the jail Superintendent informs them of either the dismissal of their appeal, review, or special leave to appeal by the Supreme Court or the confirmation of their death sentence by the High Court once the time to appeal to the Supreme Court has passed. The convicts can file petition to both the Governor and the President in such cases. If there are multiple convicts all must file their petitions within 60 days. While BNSS Section 472(7), the President’s decision on mercy petitions is final and cannot be appealed or reviewed by the courts. Once the President decides, the Central Government must communicate it to the State’s Home Department and the jail authorities within 48 hours.}

^{Types of Pardons}

^Pardon:

^{When the President pardons, both the sentence and the conviction of the convict completely absolve the sentences, punishments and disqualifications}

^Respite:

^{When the President uses the pardoning power of ‘Respite’, he chooses to award a lesser sentence in place of one originally awarded to the convict. For example, due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender, the President can use this power}

^Reprieve:

^{When the President chooses the pardoning power of ‘Reprieve’; he stays the execution of a sentence (especially that of death) for a temporary period. By doing this, he enables the convict to have time to seek pardon or commutation from him}

^Remit:

^{When the President chooses the pardoning power of Remit, he acts to reduce the period of the sentence but the character of the sentence remains the same. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year but the imprisonment remains rigorous}

^Commute:

^{When the President chooses to use this pardoning power of ‘Commute; he substitutes one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.}

^{International Experience}

^USA:

^{Article II of the US Constitution grants the President the “Power to Grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.” In the United States, courts have been cautious in interpreting the pardoning power where restrictions have been imposed on those who were pardoned.  In Hoffa v. Saxbe, a condition imposed on a pardon, was challenged as unconstitutional. The District Court ruled that the "framework of the constitutional system" limits the President's authority to impose and later enforce conditions on pardons. Apart from judicial scrutiny in this area, the power of pardon has been allowed to exercise freely.}

^UK:

^{In the United Kingdom, the Crown's exercise of mercy was originally established in the Middle Ages, with the infringement of the King's peace arising as a ground for criminal culpability. In Thomas v. SorrelL, the maxim non potest rex gratiam facere cum injuria et damno aliorum, that is to say, ‘the King cannot confer a favour on one man to the injury and damage of others’, was applied. More so, where any right pardon, cannot affect it or take it away. At present, the monarch exercises the power on the advice of the Home Secretary.}

^Pakistan:

^{Article 45 of the Pakistan’s Constitution confers the right to the President an absolute power to reprieve, respite & remit, suspend or commute any sentence passed by any court, tribunal or authority. The power cannot be questioned.}

^Bangladesh:

^{Article 49 of the Bangaldesh’s Constitution provides mercy power to the President. Apart from constitutional provisions, the government may suspend, remit or commute the sentence of a person under the Code of Criminal Procedure of 1898. However, the President cannot exercise the prerogative power independently and it has to be done in consultation with or in accordance with the advice of the Prime Minister through the Ministry of Law and Parliamentary Affairs.}

^Database

^{Research that engages with}[9] [10]

^Challenges

^{It may prevent the executive from utilizing this power for reasons that although may not strictly be in conformity with constitutional principles, may nevertheless be in the interest of the State. Given the bizarre twist that the polity has taken in recent times, it seems to be self-evident that the only protection we have from complete insanity is judicial review. Failure of combining democratic governance with separation of powers between different organs of the state would lead to lawlessness where a situation would arise where criminals guilty of heinous crimes would not face the due process of rule of law.}

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