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DR. RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY

FINAL DRAFT

SUBJECT – CONSTITUTIONAL LAW-II

TOPIC – PARDONING POWER OF PRESIDENT

SUBMITTED TO: SUBMITTED BY:

Mr. Atul Kumar Tiwari Abhay Singh Rajput

Associate Professor B.A. LL.B. !ons."

RML#L$% Luc&now Sem'() Roll #o. *+

Signature Signature

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ACKNOWLEDGEMENT

,ithout your great support Mr. Atul Kumar Tiwari sir% it woul- not hae been

possible for me to write this project. /ou hae always been ery responsie in

proi-ing necessary information% you hae always been my source of inspiration

an- will remain foreer ( a-mit this too. ,ithout your generous support ( might not

hae been able to complete this project.

( am ery than&ful to you an- for your magnanimous support0

' Abhay Singh Rajput

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CONTENTS

TOPIC COVERED PAGE NO.

• (ntro-uction *1

• Statement of the problem *+

• Par-oning Power un-er (n-ian 2onstitution *3

• Reasons behin- par-oning power *4

• Time frame for e5ercise of the power *6

• 2ontemporary Practices *7

• Par-oning Power an- 8u-iciary 99

• 2onclusion 9:

• Bibliography 9;

INTRODUCTION

The Power of Par-on has a long history. (ts origin -ates bac& to ancient time. (t is an artifact

i.e. a human creation of ol-er times in the history. (n the ancient times% it was monarchy

eerywhere an- there was no such concept as -emocracy. King was treate- as a go-. Kings

consi-ere- themseles as supreme power. They use- to hae complete control oer the people of

their empire. !istory tells us that there were many &ings who ha- misuse- their powers li&e

Aurang


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=,hat &ing says must be right>. This was popular &nown as the ?iine @rigin theory of the State

an- the King.9

The concept of par-on came into being an- it has been in e5istence for ages till the present.

Power of Par-on has yiel-e- positie results in the form of mans belief in the nobility of the

society an- its laws. (t has also yiel-e- negatie results as many criminals hae not atone-

themseles een after they hae been par-one- an- hae continue- to be a menace to the society.

This has lea- to -ebate of necessity of par-oning power. @n the other han-% arious issues an-

contemporary -ebates hae -ealt with the ali-ity of retributie laws especially the magnitu-e of

those awar-ing harsh punishments. Thus in the present scenario it has become an utmost nee-.

The 2onstitution ma&ers &ept the following facts in their min- an- institute- three wings of

powers i.e. Legislature% 8u-iciary an- 5ecutie. Legislature ma-e laws many of them being

retributie in nature% the 8u-iciary interprete- the laws an- applie- them to punish criminals an-

the 5ecutie gae the finishing touch by chec&ing the punishment ju-gment" for flaws%

mo-ifying if necessary an- then applying it accor-ing to the merits of the case. !.M.Seerai ha-

aptly writtenC:

=8u-ges must enforce the laws% whateer they be% an- -eci-e accor-ing to the best of their

LightsD but the laws are not always just an- the lights are not always luminous. #or% again are

8u-icial metho-s always a-eEuate to secure 8ustice. The Power of par-on e5ists to preent

injustice whether from harsh% unjust laws or from ju-gments which result in injusticeD hence the

necessity of esting that power in an authority other than the ju-iciary has always been

recogni;

But with the course of time% the sanctity of power of par-on ha- been lost an- it became

impure. Fra-ually arious -iscrepancies hae crept in an- the ol- phrase =Power corrupts an-

absolute power corrupts absolutely> became applicable here also. Though the con-ition is not so

1 Mahajan% ).?. ' Political Theory

2 Ba&shiD P M :*9*". Constitution Of India

3 H.M.Seervai, Constitutional law of India, 4th edition, Page 2004

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https://books.google.com/books?id=rA39_9XtbBkC&pg=PR48-IA5https://books.google.com/books?id=rA39_9XtbBkC&pg=PR48-IA5


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critical at present future speculations hae gien rise to -ebates about whether the -iscretion

nee-s to be curtaile- or not. This project specifically aims at loo&ing upon one of the aspects of

this power that there shoul- be gui-elines regar-ing the e5ercise of this power of par-on by

Presi-ent or Foernor.

As state- before the proision of par-oning power was alrea-y in e5istence while the British

rule- in (n-iaD till the in-epen-ence it -erie- its ali-ity from Sec :7+ of Foernment of (n-ia

Act% 97;+ un-er which the Foernor Feneral ha- power to par-on.1

STATEMENT OF PROBLEM

The 2onstitution of (n-ia is substantially silent about the gui-elines the Presi-ent an- the

Foernor ought to follow in the e5ercise of the Power of Par-on. This power is proi-e- to them

as per Article 4: an- 939 respectiely. #ow the 2ouncil of Ministers ren-ers ai- an- a-ice to

the Presi-ent as per Article 419" but not as per the aboe mentione- Articles which actually tal&

about the par-oning power. Moreoer it is clearly mentione- that the 2ouncil of Ministers can

only un-erta&e this actiity of ai-ing an- a-ising the Presi-ent only in the performance of his

GH$#2T(@#S an- G#@T P@,RS . But unfortunately% in contemporary practice the 2ouncil‟ ‟

of Ministers has always interrupte- in the Presi-ents job wheneer they got an opportunity to

play the role of a par-oning authority an- subseEuently always try to satisfy their own whims%

fancies an- interests. These interests often gain priority oer public an- societal interests. This

mal practice has mainly eole- -ue to ju-icial interpretation whereas the 2onstitution of (n-ia

-oes not authenticate it any way.

So% if par-oning is a function then the Presi-ent ought to ta&e a-ice from the Ministers an-

be boun- by it. An- if it is a power as the name ery well suggests% then he must hae full

-iscretion in the e5ercising of this power.

4 httpsCIIen.wi&ipe-ia.orgIwi&iIFoernmentJofJ(n-iaJActJ97;+

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So% neither the Presi-ent shoul- be boun- by the a-ice of the Ministers% nor there shoul- be full

-iscretion to him as it can lea- to arbitrariness an- misuse.

,e therefore nee- to a-opt a mi--le way whereby the par-oning authority ought to &eep

certain pre-efine- an- prescribe- gui-elines in min- while e5ercising this power. This -efinitely

-oes not inclu-e him being boun- by the a-ice ren-ere- by the ministers.

This way% there woul- neither be full curtailment of the Presi-ents power nor there woul- be

complete free-om an- authority gien to him as both hae their ill effects.

PARDONING POWER UNDER INDIAN CONSTITUTION

Before the commencement of the (n-ian 2onstitution% the law of par-on in British (n-ia was

the same as in nglan- since the soereign of nglan- was the soereign of (n-ia. The

Foernment of (n-ia Act% 97;+% recogni


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matter to which the e5ecutie power of the State e5ten-s>. The e5ecutie power of the state

e5ten-s to matters with respect to which the legislature of the State has the power to ma&e laws.4

A$t' *+,( of the (n-ian 2onstitution confers the power on the Presi-ent to grant par-ons an-

commute sentences in the following casesC

• (n all cases where the punishment or sentence is by a 2ourt Martial.

• An all cases where the punishment or sentence is for an offence against any law relating

to a matter to which the e5ecutie power of the $nion e5ten-s.

• (n all cases where the sentence is a sentence of -eath.

A$t' *+,( says nothing in sub'clause a" of clause 9" shall affect the power conferre- by law

on any officer of the Arme- Horces of the $nion to suspen-D remit or commute a sentence passes

by a 2ourt Martial.

REASONS BEIND PARDONING POWER:

The par-oning power is in -erogation of the law. (mplying that if laws coul- always be

enacte- an- a-ministere- so they woul- be just in eery circumstance to which they are applie-%

there woul- be no nee- for the par-oning power.6 Therefore% the power to par-on is meant to be

use- in those circumstances where it woul- not be in the interest of justice to strictly apply the

law een if the circumstances call for the same. 5ecutie clemency e5ists to affor- relief from

un-ue seerity or plain mista&e in the operation or enforcement of the criminal law. The

a-ministration of justice by the 2ourts is not necessarily always wise or certainly un-erstan-ing

of circumstances% which may properly alleiate guilt. (t is a chec& entruste- to the 5ecutie for

).#. Shu&la

The ?eputy (nspector Feneral of Police% #orth Range% ,altair an- Anr.. ?. Rajaram an- @rs% MA#$IAPI*93:I973*

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special cases.7 A country woul- be most imperfect an- -eficient in political morality without a

power for clemency.9*

TIME FRAME FOR TE E/ERCISE OF POWER

en in this area there is a -ebate as to whether we can hae a time frame for the e5ercise of the

par-on power. The Supreme 2ourt has ta&en both the stan-s an- the researcher woul- present

both the iew points. (t has been obsere- by the Supreme 2ourt that a perio- of anguish an-

suffering is an ineitable conseEuence of sentence of -eath but a prolongation of it beyon- the

time necessary for appeal an- consi-eration of repriee is not.

Keeping in min- the stan- ta&en by the 2ourt% it can be inferre- that the Supreme 2ourt is of the

iew that -elay in the -ecision of the Presi-ent causes aoi-able mental agony an- suffering tothe conict. Therefore% to contain such unnecessary harm to the conict there shoul- be a time

frame -uring which the e5ecutie has to gie its -ecision.

Article :9 -eman-s that any proce-ure% which ta&es away the life an- liberty of persons% must be

reasonable% just an- fair. This proce-ural fairness is reEuire- to be obsere- at eery stage an-

till the last breath of the life. (f there has been an inor-inate -elay in the -isposal of a mercy

petition then proce-ural fairness is itiate- an- Article :9 is iolate-. Therefore% there shoul- be

a time frame for the -isposal of a mercy petition.

!oweer% there is a -ifferent point of iew as well. (n this the 2ourt has ta&en a -ifferent stan-

from that ta&en by the 2ourt in earlier cases. The time ta&en by the e5ecutie for -isposal of

mercy petitions may -epen- upon the nature of the case an- the scope of enEuiry to be ma-e. (t

may also -epen- upon the number of mercy petitions submitte- by or on behalf of the accuse-.

Moreoer% no fi5e- -elay can be consi-ere- a fi5e- perio-. The court% therefore% cannot

prescribe a time limit for -isposal een of mercy petitions.

+ S.C. ain, The Constitution of India-Select Issues and Perceptions 5/aann

ew !elhi, 2000.

10 5+ 6 ur 2d, Pardon and Parole, 5

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CONTEMPORARY PRACTICE

The contemporary practice in present scenario is that 2ouncil of Minister goerns an- -ictates all

terms of par-oning power e5ercise- by the e5ecuties. The !on ble 2ourt in the case of Maru‟

Ram . $nion of (n-ia99 rule- that the Presi-ent an- the Foernors in -ischarging the functions

un-er Article 4: an- Article 939 respectiely must act not on their own ju-gment but in

accor-ance with the ai- an- a-ice of the Ministers. Article 419" of (n-ian 2onstitution

proi-es thatC

There shall be a 2ouncil of Minster with Prime Minster at the hea- to ai- an- a-ise the

Presi-ent who shall% in the e5ercise of his functions% act in accor-ance with such a-ice.9: Thus

the par-oning power is being use- partially. Many times political interest gains more importance

as compare to societal nee-s% less preferences are gien to public interest an- what justice an-

morality -eman-. This power is misuse- an- irreleant consi-erations are consi-ere- releant%

absence of application of min- etc. are the factors which influence par-oning power. Hairness

an- legal certainty which occupies the center position in Rule of Law shoul- be &ept in min-

while e5ercising of such power.

There are two cases which show the contemporary practice

9. S0"$"n Sn12 %. St"t' o3 U.P.9;

C There was a three ju-ge bench consisting of K.T.

Thomas% M Punchi an- M Srinaasan. (n this case a MLA of the State Assembly ha-

been conicte- of the offence of mur-er an- within a perio- of less than two years he

succee-e- in coming out of the prison as the Foernor of $ttar Pra-esh grante-

remission of the remaining long perio- of his life sentence. The son of the -ecease-

moe- the Allahaba- !igh 2ourt challenging the aforesai- action of the Foernor an-

the same haing been -ismisse- the matter was brought to this 2ourt by grant of special

11 1+1 /1 SCC 10

12 Su$s. )% the Constitution /fort% se#ond aendent a#t, 1+(, se#. 13, for

#lause /1 /w.e.f. 3.1.1+

13 6I* 1++ SC 202(

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leae petition. This 2ourt ha- come to the conclusion that the Foernor was not tol- of

certain ital facts concerning the prisoner such as his inolement in fie other criminal

cases of serious offences% the rejection of his earlier clemency petition an- the report of

the jail authority that his con-uct insi-e the jail was far from satisfactory an- out of two

years an- fie months he was suppose- to hae been in jail% he was in fact on parole

-uring the substantial part thereof. The 2ourt further hel- that when the Foernor was

not poste- with material facts the Foernor was apparently -eprie- of the opportunity to

e5ercise the powers in a fair an- just manner an- the or-er fringe- on arbitrariness. The

2ourt% therefore% Euashe- the or-er of the Foernor with a -irection to reconsi-er the

petition of the prisoner in the light of the materials which the Foernor ha- no occasion

to &now earlier. The 2ourt hel- that if the par-on power =was e5ercise arbitrarily% mala

fi-e or in absolute -isregar- of the finer canons of the 2onstitutionalism% the by'pro-uct

or-er cannot get the approal of law an- in such cases% the ju-icial han- must be

stretche- to it>

:. S"t4"# %. St"t' o3 "$5"n"(6C (n this case there was two ju-ge bench consisting of F.B.

Pattanai& $. 2. Banerjee. The 8u-gment was -eliere- by Pattnai&% 8. As per the facts

of the case respon-ent Siriyans Kumar 8ain along with four other accuse- persons

belonging to the Bhartiya 8anta Party were trie- for haing committe- offence un-er

Section ;*: rea- with Sections 917 an- 9:*'B as well as un-er Sections ;7:% 916% 1+:

an- ;:; of the (n-ian Penal 2o-e. The learne- Sessions 8u-ge conicte- all the fie

accuse- persons. Siriyans Kumar 8ain Respon-ent ;" in the present writ petition instea-

of surren-ering to sere the sentence% as -irecte- by this 2ourt% file- an application before

the Foernor ino&ing his juris-iction un-er Article 939 of the 2onstitution. The

Secretary to the Foernor a--resse- a letter to the Secretary to the Foernment of

!aryana% ?epartment of 8ails reEuesting for a report in the matter to be place- before !is

5cellency% the Foernor of !aryana. The appropriate authority% namely% 8oint Secretary

to the Foernment in the !ome ?epartment in-icate- in his note that the opinion of the

Legal Remembrance shoul- be obtaine- as to whether this is a fit case for e5ercising the

power un-er Article 939 of the 2onstitution or not. The opinion of the Legal

Remembrancer was then place- before the Minister concerne- an- finally the 2hief

14 6I* 2000 SC 102

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Minister agree- with the iews of the Legal Remembrancer an- came to the conclusion

that this is a fit case where -iscretion gien un-er Article 939 of the 2onstitution be

e5ercise- an- relief praye- for be grante-. @n the basis of the aforesai- a-ice of the

2hief Minister the Foernor finally grante- par-on. (t was conten-e- that the ery or-er

passe- by the Foernor woul- in-icate total non'application of min-. (t was foun- that

Foernor has passe- the or-er without being ai-e- an- a-ise- by the 2ouncil of

Ministers an-% therefore% the or-er is itiate-. Thus court hel- that =the sai- power being

a 2onstitutional power conferre- upon the Foernor by the 2onstitution is amenable to

ju-icial reiew on certain limite- groun-s. The 2ourt% therefore% woul- be justifie- in

interfering with an or-er passe- by the Foernor in e5ercise of power un-er Article 939

of the 2onstitution if the Foernor is foun- to hae e5ercise- the power himself without

being a-ise- by the Foernment or if the Foernor transgresses the juris-iction in

e5ercising the same or it is establishe- that the Foernor has passe- the or-er without

application of min- or the or-er in Euestion is mala fi-e one or the Foernor has passe-

the or-er on some e5traneous consi-eration.

PARDONING POWER AND JUDICIARY

The Presi-ent while e5ercising the power un-er Article 4: can go into the merits of the casenotwithstan-ing that it has been ju-icially conclu-e- by the consi-eration gien to it by the

Supreme 2ourt. The power un-er Article 4: entitles the Presi-ent to e5amine the recor- of

ei-ence of the criminal case an- to -etermine for himself whether the case is one -esering the

grant of the relie- falling within that power. !e can% on scrutiny of the ei-ence on recor- in the

criminal case% come to a conclusion -ifferent from that recor-e- by the 2ourt in regar- to the

guilt of% an- sentence impose on% the accuse-. (n -oing so% the Presi-ent -oes not amen- or

mo-ify or superse-e the ju-icial recor-. The ju-icial recor- remains intact% an- un-isturbe-.

Therefore% there is no interference with the functions of the ju-iciary. The a-ministration of

justice by the courts is not necessarily always wise or certainly consi-erate of circumstances%

which may properly mitigate guilt. To affor- a reme-y% it has always been thought essential in

popular goernments% as well as in monarchies% to est in some other authority than the courts%

power to improe or aoi- particular criminal ju-gments. (t is only a chec& entruste- to the

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5ecutie for special cases. (t is clear that the powers este- in the Presi-ent of (n-ia un-er Art.

4:D in the Foernor un-er Article 939 of the 2onstitution an- in the State Foernment un-er S.

1*9 of the 2r.P.2. are essentially e5ecutie powers of mercy which operate in completely

-ifferent fiel-s. The trial of criminals an- the passing of sentences are purely in the -omain of

the ju-iciary whereas the e5ecution of sentences is purely with the 5ecutie Foernment. Thus

it is clear that the or-ers un-er Article 4: are essentially an- basically e5ecutie or-ers in a

completely -ifferent fiel-.9+ The !ea- of the 5ecutie e5ercises his powers of mercy un-er the

2onstitution commonly &nown as mercy juris-iction. Since% no such powers are este- with

any ju-icial organD there can be no infringement upon its functions.93

CONCLUSION

As seen that Presi-ential par-on is one of the powers that been gien to the e5ecutie by the

2onstitution. The researcher in his conclusion woul- li&e to loo& bac& at the issues -iscusse- an-

analy An act or omission ma-e punishable by law for the

time being in force>.

1( Bal&rishna at =Presi-ential Power of Par-on>% 9; J.I.L.I 9749" at 9*1..

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There is a necessity on the part of the legislature to bring an amen-ment to the constitution%

to preent the use of power in ones own case. Meaning that there shoul- not be any self'

par-oning. @n the part of the e5ecutie. The reason for this being that in such a case there woul-

be a bias an- abuse of power will ta&e place. (t is also important to set a time frame for the

e5ercise of this powerD this will help in early -isposal of the cases. 8u-icial reiew of this power

is another issue which is -ebatable. The researcher is of the opinion that this power shoul- not be

absolute% at the same time the ju-iciary shoul- not interfere with his power too much% it shoul-

only be -one in the case of arbitrariness an- malafi-e.

The principles of natural justice shoul- be imbibe- in the e5ercise of clemency powers

becauseC firstly% they -o not affect the purpose of mercy juris-iction an- secon-ly% through

proce-ural fairness the scope of a bias is re-uce-. There is no nee- for any gui-elines to be set asthe scope will -iffer from case to case basis.

BIBLIOGRAPY

).#. Shu&las% 2onstitution of (n-ia% 9:th e-ition%

M.P. 8ain% (n-ian 2onstitutional Law% 3th e-ition%

Subhash 2. 8ain% =The 2onstitution of (n-ia' Select (ssues Perceptions>% www.scconline.com

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http://www.scconline.com/http://www.scconline.com/

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