Presidential pardoning power under Article 72

The Presidential Pardoning Power, enshrined in Article 72 of the Constitution of India, represents a crucial executive check on the judiciary, enabling the President to grant clemency in cases involving Union law, court-martial, and the death penalty. Understanding the five distinct forms of clemency—Pardon, Commutation, Remission, Respite, and Reprieve—along with the constitutional limitations on the Governor's power under Article 161, is vital for students preparing for Indian Polity and constitutional law examinations, particularly concerning the principles laid down by the Supreme Court.

Analysis of Presidential Pardoning Power: Article 72 and Its Constitutional Significance

• The power to grant mercy is a high executive power vested in the President to correct potential miscarriages of justice and provide a final layer of humanitarian relief.

  This power, originating from the sovereign's prerogative of mercy, is integrated into the constitutional scheme to function as a safeguard against judicial inflexibility and error.

  • (i) The ultimate authority for clemency is derived from Article 72 of the Constitution, which 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 offence.
  • (ii) This right is not an appellate function but an independentexecutive power, exercised outside the judicial hierarchy. The President is not re-examining the case as a higher court.
  • (iii) The President’s pardoning power is rooted in the belief that even the most meticulous judicial system can err, providing a mechanism for the correction of judicial errors or to mitigate sentences perceived as unduly harsh.

• Scope of Article 72: The President's Exclusive Jurisdiction

  The President's clemency power is unique and extends to three specific areas, granting them exclusive jurisdiction in military justice and capital punishment.

  • Three Grounds for Presidential Clemency

    The power under Article 72 is triggered when the sentence or punishment relates to one of three specified categories, establishing the federal nature of this power.

    • (a) The conviction is for an offence against a law relating to a matter to which the Union's executive power extends, essentially any Union law.
    • (b) The sentence is awarded by a court-martial, reflecting the President's role as the supreme commander of the armed forces, where the Governor has no jurisdiction.
    • (c) The sentence involves the death penalty, providing the ultimate constitutional mercy valve against the gravest judicial punishment.

• Five Types of Pardoning Power: A Clemency Spectrum

  The President can choose from a spectrum of five forms of clemency, each providing a different degree of relief to the convict based on the merits and circumstances of the case.

  • Detailed Breakdown of Clemency Forms

    The specific terms Pardon, Commutation, Remission, Respite, and Reprieve define the exact nature and extent of the relief granted, offering constitutional flexibility in handling punishments.

    • (i) Pardon: This is the most comprehensive form of clemency, which completely absolves the convict of the crime, removing both the conviction and the sentence, along with all associated disqualifications, effectively treating the individual as if they were never convicted.
    • (ii) Commutation: Involves the substitution of a punishment with a lighter or less severe form of punishment. For example, the death sentence may be commuted to rigorous imprisonment, or rigorous imprisonment may be further commuted to simple imprisonment. The nature of the punishment is changed.
    • (iii) Remission: Refers to the reduction of the period of the sentence without changing its fundamental nature. For instance, a sentence of two years of rigorous imprisonment is remitted to a period of one year of rigorous imprisonment. The severity remains, but the duration is reduced.
    • (iv) Respite: Denotes the award of a lesser sentence than the one originally prescribed, specifically due to the existence of some special facts or circumstances. Common examples include pregnancy of a female offender or the physical disability of the convict.
    • (v) Reprieve: This grants a temporary stay on the execution of a sentence, most commonly a death sentence. Its purpose is to give the convict sufficient time to seek a Pardon or Commutation from the President.

• The Governor’s Power of Mercy under Article 161: A Comparison

  Similar to the President, the Governor of a state is also vested with the power of mercy under Article 161, but with significant constitutional limitations tied to the state's executive domain.

  • Key Differences Between Presidential and Governor Pardons

    The Governor’s power extends only to offences against state law, and importantly, they lack the exclusive authority of the President in two critical areas.

    • (i) Court-Martial Exclusion: The Governor has no authority to grant any form of clemency for sentences awarded by a court-martial (military court).
    • (ii) Death Sentence Limitation: The Governorcannot grant a complete Pardon for a death sentence. However, the Governor retains a concurrent power with the President to suspend, remit, or commute a death sentence.

• Supreme Court Rulings: Judicial Review and Guiding Principles

  The Supreme Court has played a pivotal role in delineating the boundaries of the President’s pardoning power, clarifying its independence while establishing grounds for limited judicial review.

  • Principles of Judicial Review on Pardoning Power

    The court has consistently upheld the independent nature of the power, emphasizing that it is an executive function based on the advice of the Union Cabinet, yet it is not immune to scrutiny if abused.

    • (i) No Right to Oral Hearing: The individual seeking mercy has no constitutional right to an oral hearing before the President or the relevant authorities.
    • (ii) Review of Evidence: The President can undertake an independent review of the evidence and material on record, adopting a humanitarian or political perspective that may differ from the court's strict legal finding.
    • (iii) Basis of Advice: This executive power is always exercised based on the binding advice of the Union Cabinet (Council of Ministers).
    • (iv) Non-Arbitrary Exercise: The primary constitutional check is that the Supreme Court can examine the President’s decision only if it is found to be arbitrary, irrational, mala fide, or discriminatory, thus preventing the abuse of the power.
    • (v) No Binding Guidelines: The Supreme Court has specifically stated that it has no power to lay down guidelines for the manner in which the President or Governor should exercise this power.
    • (vi) Validity of Acts: A subsequent mercy petition after an initial rejection does not automatically entitle the petitioner to a stay on the execution of the sentence.

• Summary: The Pardoning Power – A Final Constitutional Safety Net

  The Presidential Pardoning Power under Article 72 is an essential constitutional safety net, granting the nominal executive the final authority over punishments, particularly the death penalty and sentences from the court-martial. The five categories of clemency—Pardon, Commutation, Remission, Respite, and Reprieve—ensure flexible relief, while the limited judicial review established by the Supreme Court ensures that this crucial executive power is used responsibly and constitutionally, a concept of high importance for students of Indian Polity.