8/18/2019 Consti II FD
1/13
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
1 | P a g e
8/18/2019 Consti II FD
2/13
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
2 | P a g e
8/18/2019 Consti II FD
3/13
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
8/18/2019 Consti II FD
4/13
=,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
4 | P a g e
https://books.google.com/books?id=rA39_9XtbBkC&pg=PR48-IA5https://books.google.com/books?id=rA39_9XtbBkC&pg=PR48-IA5
8/18/2019 Consti II FD
5/13
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;+
5 | P a g e
8/18/2019 Consti II FD
6/13
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
8/18/2019 Consti II FD
7/13
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*
7 | P a g e
8/18/2019 Consti II FD
8/13
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
8 | P a g e
8/18/2019 Consti II FD
9/13
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(
9 | P a g e
8/18/2019 Consti II FD
10/13
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
10 | P a g e
8/18/2019 Consti II FD
11/13
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
11 | P a g e
8/18/2019 Consti II FD
12/13
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..
12 | P a g e
8/18/2019 Consti II FD
13/13
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
13 | P a g e
http://www.scconline.com/http://www.scconline.com/