PARDONING POWER OF PRESIDENT AND GOVERNOR:

Power of pardon under Article 73 and 161 by the Constitution is different from judicial power as the
governor or the President can grant pardon or reduce the sentence of the court even if a minimum is
prescribed.
 
"Hence, there is no doubt that the President or governor can grant pardon/reduce the sentence.
 
For example, in the case of Commander Nanavati who was held guilty of murder, the governor gave
him pardon although the minimum sentence for murder is life sentence.
 
CONSTITUTIONAL PROVISIONS:-
PARDONING POWER OF PRESIDENT OF INDIA: ARTICLE 72:
(1) The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any offence -
a)     in all cases where the punishment or sentence is by a Court Martial;
b)    in all cases where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends;
c)     in all cases where the sentence is a sentence of death.
 
Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute
sentences in certain cases.
 
PARDONING POWER OF GOVERNOR: UNDER ARTICLE 161:
Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain
cases The Governor of a State shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any person convicted of
any offence against any law relating to a matter to which the executive power of the State extends.
 
The Article deals with the power of the Governor to grant pardons, etc, and to suspend, remit or
commute sentences in certain cases. The Governor of a State shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating to a matter to which the executive power of
the State extends. Thus, this Article empowers the Governors of States to grant pardon, reprieves,
respites or remissions of punishment or suspend, remit or commute the sentence of a person
convicted of an offence against a law relating to a matter to which the executive powers of the State
extends.
 
DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND GOVERNOR:
The scope of the pardoning power of the President under Article 72 is wider than the pardoning power
of the Governor under Article 161. The power differs in the following two ways:
 
The power of the President to grant pardon extends in cases where the punishment or sentence is by
a Court Martial but Article 161 does not provide any such power to the Governor.
 
The President can grant pardon in all cases where the sentence given is sentence of death but
pardoning power of Governor does not extend to death sentence cases.
 
JURISPRUDENCE OF GRANTING PARDON:-
The philosophy underlying the pardon power is that that “every civilized country recognizes and has,
therefore provided for the pardoning power to be exercised as an act of grace and humanity in proper
cases, without such a power of clemency to be exercised by some department or functionary of
government, a country would be most imperfect and deficient in its political morality and in that
attribute of deity whose judgments are always tampered with mercy.”
 
The pardoning power is founded on consideration of public good and is to be exercised on the ground
of public welfare, which is the legitimate object of all punishments, will be as well promoted by a
suspension as by an execution of the sentences.
 
In common parlance, to pardon means to forgive a person of his offence. The term 'pardon' has been
defined as an act of grace, proceeding from the power entrusted with the execution of the law, which
exempts the individual on whom it is bestowed upon, from the punishment the law inflicts for a crime
he has committed. It affects both the punishment prescribed for the offence and the guilt of the
offender.
 
In other words, grant of pardon wipes off the guilt of accused and brings him to the original position of
innocence as if he had never committed the offence for which he was charged. Under Indian law, the
President of India and the Governors of States have been given the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence. The
law governing grant of pardon is contained in Articles 72 and 161 of the Constitution.
 
PURPOSE OF GRANTING PARDON:- 
Pardon may substantially help in saving an innocent person from being punished due to miscarriage
of justice or in cases of doubtful conviction.
 
The hope of being pardoned itself serves as an incentive for the convict to behave himself in the
prison institution and thus, helps considerably in solving the issue of prison discipline.
It is always preferable to grant liberty to a guilty offender rather than sentencing an innocent person.
 
The object of pardoning power is to correct possible judicial errors, for no human system of judicial
administration can be free from imperfections.
 
POWER OF PARDONING IN VARIOUS COUNTRIES:-
The modern practice of pardoning find its origin in the British system in which it was a Royal
Prerogative of the King to forgive. It also finds mention in the code of Hammurabi, a series of edicts
that were developed in Babylon nearly 4,000 years ago. During the medieval period, pardon was
extensively used as a method of reducing overcrowding in prisons during war, political revolt etc. In
modern democratic countries, the power to grant pardon or clemency is vested in their executive
heads.
 
The American Constitution gives the President the power to grant reprieves or pardons for offences
against the USA, except in case of impeachment. However, this power is available only in case of
violation of Federal law and pardon in the case of violation of a State law has to come from the
Governor of the State concerned.
 
In UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial advice.
 
In Canada, pardons are considered by the National Parole Board under the Criminal Records Act.  
 
In India, the power to grant pardon is conferred upon the President of India and the Governors of
States under Articles 72 and 161 of the Constitution of India.
 
Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue
for a long time. Those who reject pardon as an effective measure of mitigating circumstances argue
that the power to pardon is often misused by the executive. There is a possibility that the convict may
procure his release from prison by exerting undue influence on the executive authority. To avoid these
flaws, in most of the countries, there is a provision for judicial review of the pardon granted in the
event of grounds for pardon being found unsatisfactory.
 
PARDONING POWER UNDER JUDICIAL REVIEW:
There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law relating
to judicial review of pardoning power.
 
In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that the power under
Article 72 is to be exercised on the advice of the Central Government and not by the President on his
own, and that the advice of the Government binds the head of the Republic.
 
In Dhananjoy Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated its earlier
stand in Maru Ram’s case and said:
 
“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State
Governments, not by the President or Governor on their own. The advice of the appropriate
Government binds the Head of the state.”
The Supreme Court in Ranga Billa case  was once again called upon to decide the nature and ambit
of the pardoning power of the President of India under Article 72 of the Constitution. In this case,
death sentence of one of the appellants was confirmed by the Supreme Court. His mercy petition was
also rejected by the President. Then, the appellant filed a writ petition in the Supreme Court
challenging the discretion of the President to grant pardon on the ground that no reasons were given
for rejection of his mercy petition. The court dismissed the petition and observed that the term
“pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to
be reasoned.
 
Supreme Court once again in Kehar Singh v Union of India  reiterated its earlier stand and held that
the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter
of right. The power exercisable by the President being exclusively of administrative nature, is not
justiciable.
 
In Swaran Singh v State of U.P., the Governor of U.P. had granted remission of life sentence awarded
to the Minister of the State Legislature of Assembly convicted for the offence of murder. The Supreme
Court interdicted the Governor’s order and said that it is true that it has no power to touch the order
passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide
or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get approval of
law and in such cases, “the judicial hand must be stretched to it.” The Court held the order of
Governor arbitrary and, hence, needed to be interdicted.
 
In the early case of K.M. Nanavati v State of Bombay ] , Governor granted reprieve under Article 161
which was held unconstitutional as it was in contrast with the Supreme Court rulings under Article
145.
 
In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, it was held by the Supreme
Court that it is a well-set principle that a limited judicial review of exercise of clemency powers is
available to the Supreme Court and High Courts. Granting of clemency by the President or Governor
can be challenged on the following grounds:
 
·         The order has been passed without application of mind.
·         The order is mala fide.
·         The order has been passed on extraneous or wholly irrelevant considerations.
·         Relevant material has been kept out of consideration.
·         The order suffers from arbitrariness.
 
Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial review.
 
PROCESS OF GRANTING PARDON IN INDIA:
The process starts with filing a mercy petition with the President under Article 72 of the Constitution.
Such petition is then sent to the Ministry of Home Affairs in the Central Government for consideration.
The abovementioned petition is discussed by the Home Ministry in consultation with the concerned
State Government. After the consultation, recommendations are made by the Home Minister and
then, the petition is sent back to the President.
 
PENDING CASES OF PARDON BEFORE THE PRESIDENT OF INDIA BECAUSE OF DELAY:
It may be stated that as of July 2010, 21 mercy petitions involving 48 convicts' mercy petitions are
pending before the President. ] They include petitions filed by two accused in the former Prime
Minister Rajiv Gandhi assassination case and a petition from 71-year old Shobhit Chamar who had
killed an upper caste adversary in Bihar.
 
Besides these, three mercy-appeals and petitions for pardon from four accused persons belonging to
Veerappan’s gang for killing 21 policemen in 1993 and four Punjab terrorists accused of killing 17
people attending a wedding near Amritsar in 1991 and the mercy appeal of Sushil Maru accused of
killing a five-year old girl in 1995 and three Dalits from Bihar convicted for massacring members of an
upper caste organization are pending for disposal before the President.
 
Dhananjoy Chatterjee who was sentenced to death for the offence of rape and murder in 1990 and
who had filed mercy petition to Governor of West Bengal was hanged after a long period of fourteen
years when his clemency plea was finally rejected by President of India due to the delay in exercising
of the pardoning power.
 
The mercy petition of Afzal Guru who had attacked Indian Parliament in 2001 and Azmal Kasab who
was held responsible in Mumbai Attack and who were sentenced to death has been decided and
rejected recently. However in June, 2010, the Ministry of Home Affairs has made recommendation to
the President's office for rejection of the mercy petition. Due to the lethargy of executive coupled with
political interest, his clemency plea has  been considered and rejected late.
 
CONCLUSION:
The pardoning power of Executive is very significant as it corrects the errors of judiciary. It eliminates
the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting
pardon is simpler but because of the lethargy of the government and political considerations, disposal
of mercy petitions is delayed. Therefore, there is an urgent need to make amendment in law of
pardoning to make sure that clemency petitions are disposed quickly. There should be a fixed time
limit for deciding on clemency pleas.
 
Regarding the judicial review debate, pardoning power should not be absolute as well as Judiciary
should not interfere too much in exercise of this power. As judicial review is a basic structure of our
Constitution, pardoning power should be subjected to limited judicial review. If this power is exercised
properly and not misused by executive, it will certainly prove useful to remove the flaws of the
judiciary.