Ill

Pardoning Powers under the

Constitution of India

1. Prelude:
In almost all the countries of the world the executive powers are
exercised in the name of the Head of the State. These powers may be
termed as extraordinary powers which also include the power to grant
pardon. These powers are generally given first to distinguish their foremost
position under their respective constitution and secondly to correct
possible judicial errors and miscarriage of justice which may occasionally
occur in the administration of justice. As a matter of fact "no human system
of judicial administration can ever claim to be free from imperfections
howsoever competent and efficient it may be."^ Therefore in order to avoid
the miscarriage of justice the power to grant pardon has been given by the
concerned constitution to the head of the State i.e. the Crown in England,
the Governor-General in New Zealand, the President in United States,
France, South Africa, Pakistan, Sri Lanka and to the Standing Committee
of National People's Congress in China so on and so forth. Similarly the
Constitution of India which was passed on 26*^ of November, 1949 and
came into force on 26*"" of January 1950^ also confers the power to

1. R.N. Mishra, The President of Indian Republic 113 (Vora and Co. Publishers Pvt.
Ltd., Bombay, 1965).
2. National Portal of India: Government: Parliament, available at
india.qov.in/qovt/barf/amenf.jD^p - 22k -. (Visited on June 7, 2011).

126
grant pardon on the President of India^ who is the head of Indian Republic.
But under the Constitution of India it is not only the President who can
exercise this power but the Governors of the concerned States are also
empowered to exercise this extraordinary power within their respective
states.
The preamble of the Constitution of India which contains the aims
and objectives of the constitution"^ also talks about the justice as an
important and necessary part of the constitution. Moreover Supreme Court
of India had declared it to be the basic structure of the constitution.^ The
preamble of the Constitution of India declares:

WE, THE PEOPLE OF INDIA, having solemnly resolved to

constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to
secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation. '^
Justice, liberty and equality are the hallmarks of the Indian
Constitution. Liberty of course is the basic human right. The concept of
liberty, coupled with the concept of justice and equality, together made the
founding fathers of the Indian Constitution realise the paramount need to
ensure that justice is done to all, including the protection of liberty and that
while doing justice and guaranteeing liberty, the concept of equality,
including fair play and objective, is not lost at sight on.^ Keeping in view the
basic aim and objective of the Constitution the

3. The Constitution of India, 1950, Art. 72.

4. Subba Rao, CJ., in Golak Nath v. State of Punjab, AIR 1967 SC 1643.
5. Keshwananda Bharti v. State of Kerala, AIR 1973 SC 1461.
6. Supra note 3 Preamble.
7. Gaurav Gupta, "The Pardon of Sovereign under Indian Constitution", 2 SLJ 857
(2004).
127
Founding Fathers of the Indian Constitution inserted two provisions i.e. Art
72 and Art. 161 and empowered the President and the Governor of the
concerned State to deliver justice to a person if the punishment appears to
be harsh. This power to grant pardon contained in the Constitution, is the
primary focus of the present chapter.
2. Power of the President under Article 72 of the Constitution:
The very first provision dealing with pardoning power is contained in
the Art 72 of the Constitution of India. It confers the pardoning power on
the President in the following words:
Power of President to grant pardons, etc and to suspend,
remit or commute sentences in certain cases - (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.
(2) Nothing in sub-clause (a) of clause (1) shall affect the
power conferred by law on any officer of the Armed Forces of
the Union to suspend, remit or commute a sentence passed
by a Court Martial.
(3) Nothing in sub-clause (c) of the clause (1) shall affect
the power to suspend, remit or commute a sentence of death
exercisable by the Governor of a state under any law for the
time being in force.^

Under Article 72 of the Constitution of India President of India has

power to issue not only the order of pardon but he can issue some other
orders as well. Such an order can be issued by him only in certain cases
as mentioned in this Article. This Article further provides that the power of
the President shall never affect the power of the Governor or any

The Constitution of India, supra note 3 Art. 72.

128
officer of the Armed Forces. Thus this Article can be divided into three
heads:
A. Nature of orders that can be issued by the President.
B. Extent of exercise of Power.
C. Effect of Power of President on the powers of Governors and the
Officers of Armed Forces.
A. Nature of Orders that can be issued by the President:
By virtue of clause (1) of Article 72 of the Constitution of India the
President of India can issue the following five types of orders:
a. Pardon,
b. Reprieve,
c. Respite,
d. Remission,
e. Commute.
The very first order i.e. 'pardon' that can be issued by the President
of India under Article 72 is the order that completely absolves the guilt of
the offender. Even the Apex Court has held that whenever a convict is
granted pardon by the President of India under Article 72, he is completely
absolved from the punishment imposed on him as also from all penal
consequences and such disqualifications as disentitle him from following
his occupation and as are concomitant of the conviction.® Thus whenever a
pardon has been received by a convict form the President of India, he
becomes free to live in society as if he never committed any offence.
Moreover the disqualification attached to the conviction also comes to an
end.
In case of the second order i.e. reprieve, can be issued by the
President of India under Article 72, simply stays the execution for a
temporary period, or postpone a capital sentence or take back or withdraw

9. Deputy Inspector General v. Raja Ram, AIR 1960 AP 259.

129
a sentence for a time.^° Generally the President can issue the order of
reprieve in all cases where a mercy petition under Article 72 is presented
before the President for consideration and this order of reprieve remains in
force till the final disposal of the petition by the President. But as a matter
of practice a specific procedure has been laid down for the grant of
reprieve where a mercy petition has been filed.^^ As per this procedure the
duty not to carry out the sentence of death has been conferred on the Jail
Superintendent. But this duty can be exercised only if a mercy petition has
been filed either by the prisoner or his relatives.^^
The third order the President of India can issue under this Article is
that of respite. This order also results in temporary suspension of a
sentence in special circumstances such as the pregnancy of a woman
sentenced with death penalty or insanity of convict. In other words it is a
postponement of execution of the sentence to the future.^^ In such type of
cases the President may also award a lesser sentence instead of the
penalty prescribed by the court.^"*
The order of respite sometimes resembles to the order of reprieve.
But there is a minor difference between these two powers of the President.
Even the Supreme Court of India while comparing the two terms respite
and reprieve has stated that:
"The term 'respite' means delaying ttie punishment,
especially in the case of a death sentence, and means as
much the same as reprieve. It would seem that granting a
respite or reprieve of punishment is practically
indistinguishable from suspending the execution of a sentence
awarded by a court for a temporary period. "^^

10. state (Government of NOT of Delhi) v. Prem Raj, 2003 SCC (Cri) 1586 at 1590.
11. Government of India, Ministry of Home Affairs, Procedure Regarding Petitions
for Mercy in death Sentence; see. Appendix - 1 .
12. Ibid.
13. V.N. Shukia, Const/tuf/on of India 336 (Eastern Book Company, Lucknow, 10""
edn., 2006).
14. Supra note 10.
15. Id., at 1593.
130
 It is quite clear from this observation of the Supreme Court that the
effect of the order of respite and reprieve will undoubtedly in both the
cases be the suspension of the sentence. Whereas the grounds for
granting respite are altogether different from that of reprieve. For example
a respite may be granted in cases of pregnancy or insanity. Sometimes it
may also be granted on the basis of good conduct of an individual or if
there had been no previous conviction^® whereas reprieve can only be
granted during pendency of the mercy petition.
The fourth order that can be issued by the President of India under
Article 72 is that of remission. Under the Constitution of India remission
means the reduction of the sentence without changing the nature or the
character of the punishment awarded by the court^^ e.g. a sentence of two
years rigorous imprisonment may be remitted to one year rigorous
imprisonment.
By changing the nature of the sentence the President do not
interfere into the jurisdiction of the court. Even the Supreme Court of India
had clearly said that an order of remission does not, in any way, interfere
with the order of the court. It merely affects the execution of the sentence
passed by the court and frees the convict from his liability to undergo the
full term of imprisonment inflicted by the court, though the conviction and
sentence passed by the court still stands as it was.^^ A remission of
sentence, therefore, does not mean acquittal.
The last order that can be issued by the President is the order of
commutation of the sentence whereby the President may change a
punishment to one of different sort than that originally awarded by the
court.^^ In the words of Supreme Court of India it is "the alteration of a

16. /cf., at 1590.

17. V.N. Shukia, supra note 13.
18. Ram Deo Chauhan v. State of Assam, AIR 2001 SC 2231 at 2251; see also
Za/7/cf V. State of West Bengal, AIR 2001 SC 1312.
19. Supra note 13.
131
sentence of one kind into a sentence of less severe l<ind."^° For example
rigorous imprisonment is commuted to simple imprisonment or death
sentence commuted to life imprisonment.
Thus under Article 72 President of India has power to issue not only
the order of pardon but he can also issue the orders of reprieve, respite,
remission or commutation. Whosoever applies under Article 72 he always
wishes to receive an order of pardon from the President. The basic or
obvious reason behind it is that a pardon completely relieves a person from
any kind of liability attached with the sentence and thereafter he can live in
society without any prejudice to his rights or in other words he can live a
normal life in the society without any blemish of being a criminal and can
enjoy all the rights of a normal citizen. But If a person will get anything less
than pardon such as reprieve, respite, remission or commutation in his
favour, in that case the stigma and blot attached to the punishment will go
with him till his last breath.
B. Extent of exercise of Power:
Since no power can be absolute therefore this power of the
President of India under Article 72 of the Constitution, to issue orders of
pardon, reprieve, respite, commutation, remission, is also subject to certain
restriction as well. The area within which this power can be exercised has
specifically been prescribed by the Constitution itself. As per Article 72(1)
the President of India has the power to grant pardons, reprieve, respite etc.
only in the following cases:
a. Punishment or Sentence passed by Court Martial
b. Punishment or Sentence passed under Union Laws
c. Sentence of Death under any law
a. Punishment or Sentence passed by Court IVIartial:
The President of India does have the power to grant pardon,

20. Prem Raj, supra note 10 at 1591.

132
reprieve, respite, remission or commutation in all cases where the
punishment or sentence is by Court Martial. So far as the court martial Is
concerned it also works like a court where only the military personnels can
be tried and punished if they commit any offence punishable under the
military laws. According to the Wikipedia Encyclopedia:
"A court-martial (plural courts - martial) is a military
court. These military courts can determine punishments for
members of the military subject to military law who are found
guilty or may dismiss the charges based on the evidence and
the case presented. Virtually all militaries maintain a court-
martial system to try cases in which a breakdown of military
discipline may have occurred. In addition, courts-martial may
be used to try enemy prisoners of war for war crimes. The
Geneva Convention requires that POWs (Prisoners of War)
who are on trial for war crimes be subject to the same
procedures as would be the holding army's own soldiers.
Additionally, most navies have a standard court martial which
convenes whenever a ship is lost; this does not necessarily
mean that the captain is suspected of wrongdoing, but merely
that the circumstances surrounding the loss of the ship would
be made part of the official record. Many ship captains will
actually insist on a court-martial in such circumstances. '"^^

After going through this definition we can say that court martial is a
court that decides upon crimes committed by military personnels under
army, navy or air force. It conducts all the proceedings from finding the
cause of crime to declaring the verdict. In other words "Court Martial deals
with the nitty gritty of how an army officer is forced to fight against his own
system and how he rediscovers himself in the emotional saga which also
has a touch of humour in it."^^
In India, the armed forces consists of Indian Army, Indian Air
Force and Indian Navy and accordingly the Indian Army is governed

21. Available at http://en.wikipedia.org/wiki/Court-martial. (Visited on June 07,

2011).
22. Available at http.V/www.delhilive.com/ court-martial-at-lndla-habitat- centre.
(Visited on June 07, 2011).

133
by the Army Act^^ and the Indian Air Force is governed by the Air
Force Act,^"^ whereas the Indian Navy is governed by the Navy Act.^^ If a
member of armed force commits an offence under the concerned armed
force Act to which he is subject then he can be tried and punished by
court martial. All these three Acts provide for court martial of such person
for finding out whether offence has really been committed or not. If in case
he is found guilty and has been punished accordingly, then he can file a
mercy petition under the Art. 72 of the Constitution of India.^^
In India, besides these three Acts there are two more statutes which
also provide for the punishment by way of a court martial and these acts
are the National Security Guard Act^^ and Indo - Tibetan Border Police
28

Force Act. A person subject to these Acts may be punished for an

offence punishable under the law contained in these Acts and after
punishment he, as a matter of right, can file a mercy petition before the
29
President of India.
Thus there are as many as five legislations that contain the provision
for the punishment of a person by way of a court martial. Hence in all
cases where a person has been punished for the

23. Army Act, 1950 (46 of 1950), Chapter X and XI, Sections 108-152 deal with the
Court Martial under the Act.
24. Air Force Act, 1950 (45 of 1950) Chapter X and XI, Sections 109-151 deal with
the Court Martial under the Act.
25. Navy Act, 1957 (62 of 1957) Chapter XII and XIII, Sections 93-146 deal with the
Court Martial under the Act.
26. The President is not the only authority who can exercise the power to grant
pardon in cases of an offence committed under armed forces Acts. The offender
can also file a mercy petition before certain officers of Armed Forces for grant
pardon; for details see, infra Chapter IV.
27. National Security Guard Act, 1986, (47 of 1986) Chapter VI to VIII, Sections 61-
114 deal with the 'Security Guard Court' under the Act, which is similar to the
term 'Court Martial'.
28. Indo-Tibetan Border Police Force Act, 1992 (35 Of 1992) Chapter VII to IX,
Sections 76-132 deal with the 'Force Court' under the Act, which is similar to the
term 'Court Martial'.
29. Supra note 26.

134
commission of an offence under any of these five Acts dealing witii tine
armed forces of the Union, the President of India can exercise the power to
grant pardon, reprieve, respite etc. under Article 72 of the Constitution of
India.
b. Punishment or Sentence passed under Union Laws:
The second restriction that has been imposed under Article 72 of the
Constitution of India which empowers the President to grant pardon,
reprieve, respite, remission or commutation, is that the President can
exercise the power under this Article only in cases where the punishment
or sentence is for an offence against any law relating to a matter to which
the executive power of Union extends. Therefore if any person commits an
offence against the laws wherein the Union can exercise the executive
power and was punished as well then he can be pardoned by the
President if he applies for the same. The very first question that arises over
here is that what can be the extent of the executive power of the Union?
The Constitution itself provides the answer to this question in the following
words:
Extent of the executive power of the Union - (1) Subject to
the provisions of this Constitution, the executive power of the
Union shall extend-
(a) to the matters with respect to which Parliament has
power to mal<e laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the government of India by virtue
of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a)
shall not, save as expressly provided in this Constitution or in
any law made by Parliament, extend in any State to matters
with respect to which the legislature of the State has also the
power to make laws.

The Indian Constitution being federal in nature divides the powers

between the Union and the States and clearly avers that the Parliament

30. The Constitution of India, supra note 3 Art. 73.

135
may make laws for the whole or any part of the territory of India and the
legislature of the state may make laws for the whole or any part of the
state.^^ And this Article i.e. Article 73 specifically clarifies the extent of the
executive power of the Union i.e. matters which shall be controlled and
administered by the Union executive. It simply says that subject to the
provisions of this Constitution the executive power of the Union extends to
matters with respect to which Parliament can make laws. Thus the
executive power is coextensive with the legislative competence of the
Union. For the purpose of distribution of legislative powers the Indian
Constitution contains three lists namely Union List, State List and the
Concurrent List in the seventh schedule. The parliament has exclusive
power to make laws with respect to any matters enumerated in List I i.e.
Union List and legislature of the State has power to make laws with
respect to any matters contained in the List-ll^^ i.e. State List. Lastly in
33

case of List III i.e. Concurrent List both have the power to make laws.
The clause (1) of the Article 73 has made it clear that executive power, so
far as the concurrent list is concerned, will rest with the State. It is only in
exceptional cases that parliament may entrust the administration of a law
on a concurrent subject to the Union executive.^"^
Thus we can say that as per Clause (1) (b) the President of India
can issue an order under Article 72 in case of violation of a law made by
Parliament under 1st list and in some cases llnd and llird list of the seventh
schedule of the Constitution.
Practically in India the law provides that whenever a person is

31. W., Art. 245.

32. Parliament may also make laws on the subject matters contained in LIst-ll in the
following four cases (1) under Art. 249 in the national interest, (2) under Art. 250
during emergency, (3) under Art. 252 for two or more States with their prior
consent, (4) under Art. 253 for giving effect to international agreements.
33. The Constitution of India, supra note 3 Art. 246.
34. V.N. Shukia, supra note 13 at 340.

136
arrested on the ground of commission of an offence he should be
produced before the nearest magistrate within a period of twenty four
hours and if the police wants the custody beyond twenty four hours for the
purpose of investigation then it shall be done only under the authority of
35

the magistrate. After the completion of the investigation the trial

commences. If the court punishes the offender for an offence against
Union laws, in that case a convict has a right to file a mercy petition before
the President under Article 72 of the Constitution of India. On receiving
such application the President can either grant or refuse to grant pardon to
such applicant.
c. Sentence of death:
The President of India has power to grant pardons, reprieve etc. not
only in cases of punishment or sentence for violation of laws of armed
forces or the laws of the Union, but, he can always exercise this power in
all cases where the sentence is a sentence of death. While exercising this
power it becomes inconsequential whether the death sentence is for the
commission of an offence against the laws of armed forces or the laws of
union or that of States. In all cases where a capital punishment has been
awarded under any law by any authority, the President can exercise the
power to grant pardon, reprieve, respite, commutation under Article 72 of
the Constitution of India.
There are so many central and state laws that contain a death
penalty. The majority of laws containing death sentence are enacted by the
Union itself. The following laws provide for a death penalty in India:
1. Indian Penal Code, 1872.^®

35. The Constitution of India, supra note 3 Art. 22; see also The Code of Criminal
Procedure, 1973 (Act II of 1974), ss. 56 and 57.
36. Indian Penal Code, 1860 (XLV of 1860), ss. 121, 132, 194, 195A, 302, 305,
307(2), 364 and 396 all of these provisions of the penal code provide for the
capital punishment. (Section 303 of this Code also provided for a death sentence
but it was struck down by the Hon'ble Supreme Court in Mithu v. State of Punjab,
1983Cri. L.J. 811 (S.C.) (F.B.)
137
ii. Special or local legislation:

ai. Laws relating to the Armed Forces.^^

aii. Explosive Substances Act, 1908.

aiii. Arms Act, 1959.^^

aiv. Defence and Internal Security of India Act 1971 and Defence

of India Act, 1971."^°

av. Commission of Sati (Prevention) Act 1987."^^

avi. Narcotic Drugs and Psychotropic Substances (Prevention)

Act, 1985."*^

avii. Terrorist and Disruptive Activities (Prevention) Act, 1987.'*^

aviii. Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989.'*'^

aix. Prevention of Terrorism Act, 2002.'*^

37. There are as many as five legislations dealing with military laws that provides for
the death penalty. These laws are :- Army Act, 1950 (46 of 1950), Chapter VII,
s.71 (a), Air Force Act, 1950 (45 of 1950), Chapter VII, Sec 73 (a), Navy Act,
1957 (62 of 1957), Chapter IX, s. 81 (1) (a), National Security Guard Act, 1986,
(47 of 1986) s. 47(1) (a), Indo-Tibetan Border Police Force Act, 1992 (35 Of
1992), ChapterlV, S.51 (a).
38. Explosive Substances Act, 1908 (Act No. 6 of 1908), s. 3 provides for a death
penalty.
39. Arms Act, 1959 (54 of 1959) as amended in 1988, s. 27 (3) provides for a death
penalty.
40. Defence and Internal Security of India Act 1971 (Act No. 42 Of 1971) s. 5 and
Defence of India Act 1971, provide for a death penalty.
41. Commission of Sati (Prevention) Act, 1987 (Act. No. 3 of 1988), s. 4(1) contains
the death penalty.
42. Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as
amended in 1988, s. 31A contains the death penalty.
43. Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act. No. 28 of 1987), s.
3(2)i) provided death penalty but This Act was permitted to lapse in May 1995 as
it was criticised by human rights organisations and political parties on various
counts such as misuse of the Act etc.
44. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(Act. No. 33 of 1989), s. 3 (2) (i) contains death penalty.
45. Prevention of Terrorism Act, 2002 (Act. No. 15 of 2002), s. 3(2)(a) provided death
penalty but the Act was repealed on October 7, 2004.
138
 ax. Unlawful Activities Prevention Act 1967.'^®
axi. State Laws:
There are as many as four different legislations
containing death penalty enacted by four different states
namely Maharashtra,^^ Karnataka,'*® Andhra Pradesh,"*^ and
50
Arunachal Pradesh. All these laws were enacted to
effectively control the organized crimes as these crimes have
been for quite some years now come up as a very serious
threat to our society and such a crime knows no national
boundaries and is fueled by illegal wealth generated by
contract-killing, extortion, smuggling in contrabands, illegal
trade in narcotics kidnappings for ransom, collection of
protection money and money laundering, etc.^^
Therefore there are so many legislations in our country that contain
capital punishment. Inspite of the fact, the capital punishment is not a
common feature of the Indian Criminal justice system. In a landmark
judgment in Bachan Singh's case^^ delivered in the year 1980, the
Supreme Court ruled that the death penalty should not be passed in each
and every case. Death sentence shall be passed only in the "rarest of rare"
cases. But it is not crystal clear as to what exactly will be included within
the definition of the phrase "rarest of rare" cases. In a judgment

46. Unlawful Activities (Prevention) Act 1967 (as amended in 2004) s.16 (1) (a)
contains the death penalty.
47. Maharashtra Control of Organised Crime Act 1999 (Maharashtra Act No. 30 of
1999), s. 3 (1) (i) contains the death penalty but it is applicable in Maharashtra
only.
48. Karnataka Control of Organised Crime Act 2000 (Karnataka Act No. 1 of 2002),
s. 3 (1) (i).
49. Andhra Pradesh Control of Organised Crime Act, 2001 (Andhra Pradesh Act No.
42of2001),s. 3(1)0).
50. Arunachal Pradesh Control of Organised Crime Act, 2002, s. 3 (1) (i).
51. Supra note 47 Statement of Objects and Reasons,
52. Bachan Singh v. State of Punjab, AIR 1980 SC 898.

139
delivered in December 2006, a Supreme Court bench admitted the Court's
failure to evolve a sentencing policy in capital cases and said that "No
sentencing policy in clear cut terms has been evolved by the Supreme
CO

Court. What should we do?" In absence of sentencing policy the judges

are inconsistent while applying the principle of rarest of rare cases. In the
words of P.N. Bhagwati, J:
The judges have been awarding death penalty
according to their own scale of values and social philosophy
and it is not possible to discern any consistent approach to the
problem in the judicial decision. ^^

Since the death penalty depends, to a large extent, upon the

benches of the court that are constituted from time to time, therefore it can
be said that it is arbitrary and discriminatory and violative of fundamental
rights guaranteed under Articles 14 and 21 of the Constitution of India.
Beside this fact one thing is quite clear that capital punishment is rare in
our country and there are definitely chances of release of a person even
after the award of capital sentence has been passed, if the President
deems it fit.
Thus it can be said that under Article 72(1) the President of India
possess the power to issue pardon, reprieve, respite, remission or
commutation in all cases where the punishment or sentence is by a court
martial, in all cases where the punishment or sentence is against Union
laws and in all cases of death sentence and it is of no consequence that
the death penalty is contained in a law enacted by a State. This power
assumes more importance especially when we do not have a specific
policy for punishment. If the President is satisfied that the Courts were
harsh in punishing a person then this power under Article 72 (1) is of great
importance.

53. Babluw. State of Rajasthan, A\R 2007 SC 697.

54. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 at 1377.

140
 But in order to find out the exact extent of Article 72 or for the true
Interpretation of this clause (1) of Article 72 it is necessary to find out the
exact meaning of three words namely 'punishment', 'sentence', and
'offence' which are used in this Article.
So far as the first two words i.e. 'punishment' and 'sentence' are
concerned it is evident from the above discussion that the power to grant
pardon of the President of India under Article 72 can be exercised either to
save a person from the consequences of the offence or from the
punishment. The word "offence" used in Article 72 (1) (b) is also material
which shows that the aforesaid punishment or sentence must be in respect
of an offence, which is evident from the words of Article 72 (1) (b) where
the "punishment or sentence is for an offence against any law relating to
any matter to which the executive power of the Union extends." According
to Balkrishna "it appears, therefore that the "punishment" that has to be
pardoned by the executives must be in respect of an "offence" and not for
any simple breach of a condition^^ on which any franchise has been
56 -*-

granted. This term 'offence' been defined in the General Clauses Act,
1897 which is applicable by virtue of Art. 367 of the Constitution.^^ The Act
defines the term "offence" as "offence shall mean any act or omission
made punishable by any law for the time being in force."^® Therefore, the
term offence includes only those acts or omissions which are offences

55. For instance, the action of licensee in not complying with the terms of the licence
and the order made by a tribunal after consideration in accordance with the
provisions of law governing that licence cancelling, both of these actions can
never be termed to be offence and punishment.
56. Balkrishna, "Presidential Power of Pardon", 13:1 JILI, 103 (1971).
57. The Constitution of India, supra note 3 Art. 367(1) provides that "Unless the
context otherwise requires, the General Clauses Act, 1897, shall, subject to any
adaptations and modifications that may be made therein under Art. 372, apply for
the interpretation of this Constitution as it applies for the interpretation of an Act
of Legislature of the Dominion of India.
58. General Clauses Act, 1897, s. 3.

141
under the Indian Penal Code or corresponding law and for which
prosecution is carried on in accordance with the law which has given that
'act' the character an 'offence'.
After going through the Clause 1 of Article 72 in details it can be said
that the President of India can exercise this power only when the following
three conditions are satisfied:
1. There shall be an act or omission falling within the meaning of an
offence as defined by Section 3 of the General Clauses.
2. The act or offence must be an offence against the law relating to any
matter to which the executive power of the Union extends.
3. The court might have pronounced the judgment in respect of that
offence.
Hence the President of India can exercise the power to grant pardon
etc. only in those cases in which the punishment has already been
adjudged for the commission of an offence. That means the power to grant
pardon cannot be exercised before the court propose to inflict the
punishment.
0. Effect of Power of President on the powers of Governors and
the Officers of Armed Forces:

It is not only the President of India who can exercise the power to
grant pardon and it is not only the Constitution that contains this power. In
fact the power to grant pardon can be exercised by the President as well
as by some other officers. The Constitution of India took due care of the
power of pardon to be exercised by other authorities under any law i.e.
other than the Constitution of India, for the time being in force. It is the
Article 72 of the Constitution of India itself that provides for the protection
59
to the powers to grant pardon given to some other authorities by any law.
This Article provides for the protection of the following powers:
a. Powers of Officers of Armed Forces.
59. The Constitution of India, supra note 3 Art. 72 (2) and (3).

142
b. Powers of Governors of the States
a. Powers of Officers of Armed Forces:
The Clause 2 of the Article 72 of the Constitution of India clearly
says that the power given to the President of India under the clause 1 (a)
of Article 72 shall never affect the power conferred by law on any officer of
Armed Forces of the Union to suspend, remit or commute a sentence
passed by court martial. There are as many as five different legislations
that confer the power to grant pardon on the officers of armed forces,
mentioned therein. All these legislations deal with the armed forces of the
Union and these are Army Act, 1950,^° Air Force Act, 1950,^^ Navy Act,
1957,®^ National Security Guard Act, 1986^^ and the Indo -Tibetan Border
Police Force Act, 1992.^^ The power provided under these Acts is an
independent power.
Thus it can be said that the officers of armed forces can
independently exercise the pardoning power under their respective Acts to
which they are subject and the power of President

60. Army Act, supra note 23 s. 179. By virtue of this Section the power to grant
pardon can be exercised under this Act either by the Central Government or
Chief of the Army Staff or the officer commanding any corps, division or
independent brigade; for details see, infra Chapter IV.
61. Air Force Act, supra note 24 s. 177. By virtue of this Section the power to grant
pardon can be exercised under this Act either by the Central Government or
Chief of the Air Staff or the officer commanding a group or lastly any prescribed
officer; for details see, infra Chapter IV.
62. Navy Act, supra note 25 s. 163. By virtue of this Section the power to grant
pardon can be exercised under this Act either by the Central Government or by
the Chief of the Naval Staff; for details see, infra Chapter IV.
63. National Security Guard Act, supra note 27 s. 124. By virtue of this Section the
power to grant pardon can be exercised under this Act either by the Central
Government or by the Director General or in certain cases this power can be
exercised by an officer not below the rank of a Deputy Inspector General or a
prescribed officer; for details see, infra Chapter IV.
64. Indo-Tibetan Border Police Force Act, supra note 28 s. 142. By virtue of this
Section the power to grant pardon can be exercised under this Act either by the
Central Government or by the Director General or in certain cases this power can
be exercised by an officer not below the rank of a Deputy Inspector Genera} or a
prescribed officer; for details see, infra Chapter IV.

143
under Article 72 of the Constitution shall never affect the powers of the
officers of armed forces of the Union. These officers of armed forces are
free to exercise the power to grant pardon without prejudice to the powers
of the President.
In other words if a person of armed forces, commits an offence
under the law to which he is subject and he is being punished accordingly
in a court martial he can either file a mercy petition directly before the
President under Article 72 or he may also approach the authorised officers
of armed forces for the same. If he files the petition before the officers of
armed forces and fails to obtain a relief, then, he can once again file a
petition under Article 72 of the Constitution of India. The power of the
President and the power the officers of armed forces are independent of
each other.
b. Powers of Governors of the States:
The Clause (3) of the Article 72 lays down that the powers of the
Governors of the State to grant suspension, remission or commutation of a
sentence of death conferred by law shall remain, unaffected. Therefore this
provision protects the power of the Governor to suspend, remit or
commute a sentence of death contained in Section 432 and 433 of the
Code of Criminal Procedure, 1973 or Section 54-55 of Indian Penal Code,
1860. The Governor can exercise the power like the officers of armed
forces, within the sphere mentioned in the concerned statute. Neither the
power of Governor contained in any statute, can affect the power of the
President nor can the Power of the President affect the power of the
Governor. Since this power of the Governor has been discussed in detail in
the next chapter therefore to avoid repetition it has not been reproduced
here.
3. Power of Governors under Article 161 of the Constitution:
The Constitution of India confers the power to grant pardon not only
on the President of India but it also empowers the Governor of each State

144
within the territory of India to exercise this power®^ Hence the Constitution
itself confers this powers on two different authorities. While framing the
Constitution the founding fathers of the Constitution took proper steps to
avoid a conflict between these two authorities on the issue of the grant of
pardon. Moreover the founding fathers inserted a provision in the Article 72
itself. It provides that the power of the President shall not affect the power
conferred on the Governor by any law to suspend, remit or commute a
sentence of death.^^
So far as the power of the Governor under the Constitution is
concerned it is contained in Article 161 that reads as under:
Power of Governor to grant pardons, etc and to suspend,
remit or commute sentences in certain cases - The
Governor of a State shall have power to grant pardons,
reprieves, respites or remissions of punishments 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.^^

Just like the President of India the Governor of the State concerned
also have a power to issue five types of orders under Article 161. The
orders that can be passed under this Article are:
A. Pardon,
B. Reprieve,
C. Respite,
D Commute,
E Remission.
So far as these five powers are concerned they all are similar to the
powers of the President of India. The meaning and effect of the exercise of

65. The Constitution of India, supra note 3 Art. 161. The power to grant pardon,
reprieve etc. under this Article is conferred on the Governor of States and the
Administrator of the Union territory cannot exercise this power.
66. Id, Art. 72 (3).
67. /of., Art. 161.

145
these powers is also the same. In other words the expressions pardon,
respite, reprieve, remission, commutation carry the same meaning as
go
under Article 72. For example like the President, if the Governor
exercises the power to grant pardon It also results in complete exoneration
of the convict from the punishment and the stigma attached to the
sentence.
Although the effect of the power is the same but the area within
which the power under Article 161 can be exercised is different. The Article
161 itself provides that the orders of pardon, reprieve, respite etc. can be
issued by the Governor only In cases of violation of any law relating to a
matter to which the executive power of the State extends. Once again here
also the question arises that upto what extent of the executive power of the
State can be exercised. The Constitution also answers this query in the
following words:
Extent executive power of State: Subject to the provisions of
ttiis Constitution, ttie executive power of a State sfiali extend
to tlie matters witti respect to which the Legislature of the
State has power to make laws:
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by this
Constitution or by any law made by Parliament upon the Union
or authorities thereof.^^

As discussed earlier that the Constitution of India being federal In

nature divides all powers between the Union and the States. So far as the
executive powers of a State are concerned this Article of the Constitution
clearly says that the executive power of the State is co-extensive with that
of the State Legislature meaning thereby that the State executive may
make rules regulating any matter within the legislative

68. See, supra head note "Nature of order that can be issued by the President.
69. /cf., Art. 162.

146
competence of State Legislature, without prior legislative authority, except
where a law is required because the Rules so framed would violate any
provision of the Constitution which requires legislation, e.g.. Articles 265
and 302.^°
As far as the legislative competence of the State is concerned the
legislature of State has the power to make laws in respect of matters
contained in List-ll i.e. State list and List-Ill i.e. Concurrent list of the
seventh schedule of the Constitution.^^ But in relation to the subjects
enumerated in the Concurrent list, the executive power of the State is
subject to the executive power expressly conferred by the Constitution or
by any law made by Parliament, upon the Union or the authorities thereof.
In other words where the Parliament by law confers upon the Union
authority a duty of executing a law on a subject in a concurrent list, the
executive power of the State, in relation to that subject, shall, to the extent
powers exercisable by the Union authorities, be deemed to be
abrogated.^^

Thus whenever a law is made by the State under the State or

Concurrent list and if any person is punished for the infringement thereof
such a person can file a mercy petition under Article 161 of the
Constitution of India before the Governor of the concerned State whose
law had been violated by that person. On receiving such an application the
Governor possess the power to issue an order of pardon, reprieve, respite,
commute or remission. But the Article 161 does not confer upon the
Governor to the power to grant pardon in case of capital punishment. The
power to grant pardon in case of a death sentence is exercisable by the
President himself.^^ It is true that the Constitution do not confer any power

70. Pratibha v. State ofKarnataka, AIR 1991 Kant. 205.

71. The Constitution of India, supra note 3 Art. 245.
72. V. N. Shukia, supra note 13 at 478.
73. Supra note 3 Art. 72(1) (c).
147
to grant pardon etc in case of capital sentence upon the Governor but it
does not mean that he can never exercise this power otherwise as well.
The Constitution itself says that the power of the State Governors to grant
suspension, remission or commutation of a sentence of death conferred by
any other law^'* shall remain, unaffected/^
4. Relationship between the Powers of the President and the
Governor:

The Constitution of India confers the power to grant pardon on the

President of India and the Governor of the concerned State under Article
72 and Article 161 respectively. The power conferred by the constitution on
these two executives is basically the same. The nature, basis, manner and
effect of the exercise of this power are similar in both of the cases. Despite
the similarity between the powers of the President and Governor the fact
remains that since the power to grant pardon is conferred on two different
executives hence it is quite obvious that there might be some difference
between the powers to be exercised by them under the constitution. It
appears necessary to discuss the difference, since the respective powers
are dealt with in two different Articles of the Constitution.
As discussed above that so far as the nature of power to be
exercised by both of these executives is concerned there is no difference
between the powers of these two executives. The only distinction between
the powers lies in the extent of the Pardoning power of the President and
Governor. The main points are discussed below:
1. The President of India has the power to grant pardon, reprieve,
respite, suspension, remission or commutation in respect of
punishment or sentence by court martial.^® Whereas the Governor

74. The power to suspend or commute a sentence of death has been conferred on
the Governor under Section 54 of the Indian Penal Code, 1860 and Section 432
of the Code of Criminal Procedure, 1973.
75. The Constitution of India, supra note 3 Art. 72 (3).
76. Id., Art. 72(1) (a).

148
 of a State do not possess such a power.
The President of India has power to grant pardon etc. where the
punishment or sentence is for an offence against a law relating to a
matter to which the executive power of the Union extends.^^
That means President of India possesses exclusive power to
pardon in cases of offences relating to matter contained in the First
list of the Seventh Schedule of the Constitution and the power of the
President is concurrent with the Governor in respect of offences
relating to matters enumerated in Third list of the Seventh
Schedule.^®

The Governor can exercise similar power to those of the

President in respect of an offence against the law relating to a
matter to which the executive power of the State extends except
death sentence.^^ That means barring cases involving death
sentence, the Governor of a State possesses exclusive power to
grant pardon etc. in case of offences relating to matters in Second
list of the Seventh Schedule and the power of the Governor is
concurrent with the President relating to matters contained in Third
80
list of the Seventh Schedule.
The President of India does have a power to grant pardon in all
81

cases where the sentence is that of death. It doesn't matters that

who ordered the capital punishment and under which law it has been
ordered.
Whereas the Article 161 of Constitution of India does not
confer this power to grant pardon on the Governor of a State in

77. Id., Art. 72 (1) (b).

78. Id., Art. 246.
79. Id, Art. 161.
80. Id, Art 161.
81. Id., Art. 72(1) (c).

149
 82

cases of death penalty. But the Article 72 of the Constitution saves

the power to suspend, remit or commute a sentence of death
exercisable by the Governor of a State under any law for the time
being in force.
Thus the Governor can not exercise the power to grant pardon
in cases of death sentences. But he possess, under Section 54 of
the Indian penal Code and Sections 432 and 433 of the Criminal
Procedure Code the power to suspend, remit or commute a
sentence of death in certain circumstances.
Therefore on the basis of the above discussion it can be concluded
83

that President's power is wider than that of Governor. The President can
grant pardon even in cases of the sentence by court martial whereas it is
not vested with the Governor and the President possesses the exclusive
power to grant pardon to a convict sentenced with capital punishment
whereas the Governor can use the power to suspend, remit or commute a
sentence of death under the Code of Criminal Procedure and the penal
code. Thus the President and the Governor have concurrent jurisdiction for
suspension, remission or commutation of death sentence.
Despite these various distinctions between the powers of the
President and Governor to grant pardon under the constitution of India it is
true that the power exercised by both of these entities is the same one but
can be exercised in different fields. The nature, basis, effect, scope etc. of
pardoning power under the Constitution remains the same in both cases
and the same is being discussed by the researcher hereinafter.
5. Amnesty and the Pardoning power under the Constitution:
Mr. Balakrishnan raised a practical problem in his article that "It

82. D.D. Basu, Commentary on the Constitution of India 6114 (Lexis Nexis
Butterworths Wadhwa, Nagpur, B^^ edn., 2009).
83. Abhijit M. Hartalkar, "Critical Evaluation of Pardoning Power", Cri. LJ. 154
(1996).

150
sometimes happens that a revolt or other political commotion takes place
in a country. On such occasions the head of the State makes a
proclamation that the rebels who surrender shall be granted pardon for
offences they have committed. May it be said that the President of India
does not have this power under Article 72 of the constitution?"^'*
The answer to this is that either under Article 72 or under the Article
161 of the Constitution the President and the Governor can grant pardon
only in case a person has already been punished. The power contained in
these two Articles is basically known as pardoning power.®^ But in this
instant case the persons are not punished at the time of the proclamation.
In this situation it can be concluded that the proclamation of the
President is nothing more than a promise that whatsoever action could be
taken against the rebels for their felonies and misdemeanours would not
be taken against them. The main reason behind this is that the President
of India possesses the power to grant pardon to those against whom a
punishment has already been proposed by the court.
Therefore it is evident from the above discussion that the power to
grant pardon under Article 72 and Article 161 covers only those cases in
which the punishment has already been pronounced by the court of law.
But so far as the power to grant amnesty^^ to those against whom no trial
has been initiated or on whom no punishment has been inflicted is
concerned, the President or the Governor does not possess this power.
Although the Constitution of India specifically confers the power to
grant pardon on the President and Governor but at the same time there is
no specific provision either in the Constitution or in any other statute
providing for the exercise of the power to grant amnesty. In other

84. Balkrishana, supra note 56 at 107.

85. D.D. Basu, supra note 82 at 4456.
86. The term amnesty has already been defined in the previous Chapter; for details
see, supra Chapter II.

151
words neither our constitution nor any otiier statute empowers tiie
executive to grant amnesty.^^ But this does not mean that the power to
grant amnesty cannot be exercised In India. This power is left to the
Parliament^® by virtue of Entry 97 of List I, Schedule VII read with Article
248 of the Constitution. These two provisions specifically confer a
residuary power on the Parliament. As per this power if a subject matter
does not fall under any list of the seventh schedule of the Constitution,
then the Parliament shall have exclusive power to legislate on that matter.
Therefore it can be concluded that since the Constitution does not
provide any provision for conferring the power to grant amnesty, therefore
the Parliament is empowered to exercise this power. Hence the power to
grant amnesty is a legislative power in our country.
The latest example of the use of the power to grant amnesty in India
is the 8-Point initiative for Kashmir rolled out by the Central Cabinet
Committee on Security wherein it has been decided to advice the State
Government and Kashmir to immediately release all students and youth
89

detained for stone pelting or similar violations of law.

6. Nature of the Constitutional power:
The Constitution of India has adopted the cardinal principle of the
90

theory of separation of power. For the smooth functioning of the affairs of

the country there are three wings or organs i.e. legislature, executive and
judiciary. All these three organs are independent of each other and
moreover in a democratic society it in necessary that all these three organs

87. D.D. Basu, supra note 82 at 4456.

88. Id, at 4456.
89. The Sunday Tribune, Vol. 130, No. 266, Himachal Pradesh Edition, Chandigarh,
September 26, 2010 at 1.
90. Separation of Powers, available at http://en.wikipedia.org/wiki/Separati
on of powers. (Visited on June 7,2011), This term is ascribed to French
Enlightenment political philosopher Baron de Montesquieu. Montesquieu
described division of political power among an executive, a legislature, and a
judiciary.

152
shall be independent. Keeping in view the need of the society our
constitutional father opted for adoption of the theory of separation of
powers. All these three wings of the government cannot interfere in the
field of one another. The law making power is entrusted to the legislature
and the implementation is assigned to the executives and lastly the
judiciary is to take care of the infringement of law by any section of the
society whether it is legislature, executive or an ordinary human being.
Although the functions and powers of all these three organs have
been divided properly and systematically, still, they may come in conflict at
some or the other occasion. Similarly, in case of the pardoning power
which is vested by the Constitution of India, in the executives, raises a
question of interference with the powers of judiciary. On the one side the
judiciary takes so many years to decide and punish a person who commits
an offence and whereas on the other side the executive grants pardon to
that person at one stroke.
This question of interference basically depends upon another query
as to what is the nature of the pardoning power. In other words whether
the pardoning power exercised by the President or the Governor, is an
executive or judicial function. If it is a judicial function then it is obviously an
interference with the judiciary whereby the judgment of the court is
reversed. But if it Is purely an executive function and it does not go against
the judgment of the court then it will not be a case of interference with the
judiciary.
This question, whether the power to grant pardon is executive or
judicial in nature, came up for consideration before the Privy Council in the
year 1915. The Privy Council without any hesitation held that the power to
91

grant pardon is purely an executive function. The Supreme Court also

followed the judgment of the Privy Council and held that the "Sentencing is

91. Balmukand v. King-Emperor, AIR 1915 PC 29:16 Cri. L. J. 494.

153
a judicial function, but tine execution of the sentence, after tine Court's
92
pronouncement is ordinarily a matter of the executive. In this case the
Supreme Court held that:
...an order of remission does not wipe out tlie offence; it also
does not wipe out the conviction. All that it does is to have an
effect on the execution of the sentence; though ordinarily a
convicted person would have to serve out the full sentence
imposed by a court, he need not do so with respect to that part
of sentence which has been ordered to be remitted. An order
of remission thus does not in any way interfere with the order
of the court; it affects only the execution of the sentence
passed by the court and frees the convicted person from the
liability to undergo the full term of imprisonment inflicted by the
court, though the order of conviction and sentence passed by
the court, still stands as it was. The power to grant remission
is executive power and cannot have the effect which the order
of an appellate or revisional court would have of reducing the
sentence passed by the trial court and substituting in its place
the reduced sentence adjudged by the appellate court or
93
revisional court.
With the help of this judgment the Supreme Court made it clear that
the judicial sentence is not as such cut down or upset by the exercise of
the executive power as to pardon or remission or commutation, for the
offence or the conviction is not wiped out although the prisoner would not
have to undergo the sentence imposed by the court, in whole or in part.
Moreover going a step ahead for distinguishing the executive and judicial
power the Supreme Court held that the sentence itself may be set aside or
reduced only by an appellate or revisional court. In this judgment the
94
Supreme Court also quoted the opinion of one of the great jurist Weaver
95
given in his book of the "Constitutional Law" wherein he stated:
A reprieve is a temporary suspension of a sentence of

92. Maru Ram v. Union of India, AIR 1980 SC 2147 at 2157.

93. /d, at 2158.
94. Ibid.
95. Samuel Pool Weaver, Constitutional Law and its Administration, (Callaghan and
company, Chicago, 1946).

154
 the punishment fixed by law. A pardon is the remission of such
punishment. Both are the exercise of executive function and
should be distinguished from the exercise of judicial power
over sentence. 'The judicial power and executive power over
the sentence are readily distinguishable' observed Justice
Sutherland. To render a judgment is a judicial function. To
carry the judgment into effect is an executive function. To cut
short a sentence by an act of clemency is an exercise of
executive power which abridges the enforcement of the
96
judgment but does not alter it qua judgment.
In this case the Supreme Court also agreed with the view of Weaver
and held that this constitutional power to grant pardon, reprieve, respite
etc. is basically an executive function and the exercise of the same is not
at all an interference or intrusion in the field of judiciary.
In a latest judgment once again while dealing with the same question of
interference with the judicial power, the Supreme Court of India reaffirmed
and reiterated the observation made by the Court itself in Maru Ram
case^^ and held that:
Granting of pardon is in no sense an overturning of a
judgment of conviction, but rather it is an Executive action that
mitigates or set aside the punishment for the crime. It
eliminates the effect of conviction without addressing the
98
defendant's guilt or innocence.
On the basis of the above discussion it becomes clear that the
power to grant pardon is not an interference in the field of judiciary. It is not
a judicial function but is simply an executive function. The main task of
judiciary is to adjudicate on the matter and to pronounce the judgment
whereas the execution of sentence falls within the domain of the
executives. If the executive decides to exercise the power to grant pardon,
reprieve, respite etc then it will not be an interference in the field of
judiciary.

96. Maru Ram, supra note 92 at 2158.

97. Epuru SudhakarM. Government ofAndhra Pradesfi, AIR 2006 SC 3385.
98. Id., at 3402.
155
7. Basis of exercise of Constitutional Power:
Article 72 and Article 161 of the Constitution confer wide powers to
grant pardon on the President of India and the Governors of the States.
Especially the President can grant pardon to any person even in cases of
heinous crimes punishable with the maximum punishment i.e. the death
penalty. The Constitution of India is silent as to the manner in which this
99

power of the President or the Governor to grant mercy is to be exercised.

So far as the Presidential power is concerned the bare reading of Article
72 says that the power to grant pardon is vested in the President of India
only and the question as to grant of pardon is to be decided only by the
President himself. But this Article shall be read with Article 74 which reads
as under:
Council of Ministers to aid and advice the President:
(1)There shall be a Council of Ministers with the Phme
Minister at the head to aid and advice the President
who shall, in the exercise of his functions, act in accordance
with such advice.
Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the
advice tendered after such reconsideration
(2)The question whether any, and if so what, advice
was tendered by Ministers to the President shall not be
inquired into in any court.'°''
Similarly in case of the power of the Governor to grant pardon,
reprieve, respite etc., the Article 161 simply says that this power has to be
exercised by the Governor himself and the manner of exercising this power
has not been provided by this Article. But this Article shall also be read
with Article 163 of the constitution which reads as under:
Council of Ministers to aid and advice Governor.
(1)There shall be a Council of Ministers with the Chief

99. P.M. Bakshi, Ttie Constitution of India 100 (Universal Law Publishing Co. Pvt.
Ltd., Delhi, (7"'edn., 2006).
100. The Constitution of India, supra note 3 Art. 74.

156
 Minister as the head to aid and advice the Governor in the
exercise of his functions, except in so far as he is by or under
this Constitution required to exercise his functions or any of
them in his discretion.
(2) If any question arises whether any matter is or is not
a matter as respects which the Governor is by or under this
Constitution required to act in his discretion, the decision of
the Governor in his discretion shall be final, and the validity of
anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his
discretion.
(3) The question whether any, and if so what, advice
was tendered by Ministers to the Governor shall not be
101
inquired into any court.
Both these Articles i.e. 74 and 163 mal<e it clear that the President of
India and the Governor of a State shall act strictly in accordance with the
aid and advice of the Council of Ministers. Whenever they exercise their
102

functions they are bound to follow such advice as well. The Article 74
also confers a power on the President whereby he may ask the Council of
Minister to reconsider the advice. But after reconsideration whatever is
being advised it shall be binding on the President even if there is no
amendment made by the council of Minister in the previous advice and
103

same advice has been tendered to the President. But the Article 163
does not confer any such power on the Governor to ask the Council of
Ministers to reconsider the advice.
Basically the provision as to the binding nature of the advice of the
Council of Ministers has been inserted in Article 74 of the Constitution in
the year 1976 (w.e.f 03-01-1977) by way of Forty-second Amendment of
the Constitution.^^'^ From the contents of Article 74, as it originally stood,
that there shall be a Council of Minister to "aid and advice" the President in
101. /d., Art. 163.
102. Shamsher v. State of Punjab, AIR 1974 SC 2192 at 2209.
103. The Constitution of India, supra note 3 Art. 74 proviso, Inserted by the
Constitution (Forty-fourth Amendment) Act, 1978, s. 11 (w.e.f. 20-06-1979).
104. Constitution (Forty-second Amendment) Act, 1976, s. 13 (w.e.f. 3-1-1977).
157
the exercise of his functions, one could get the impression that the
functions of the ministers are merely advisory, and it is left to the President
to accept the advice or ignore the same and the President shall have
power to decide all matters himself.
But on a true interpretation of the Constitution especially after the
amendment, it becomes abundantly clear that the function of ministers or
Council of Ministers is not of merely giving advice but they can also take
decisions which are expected to be binding and to make matters clear
beyond doubt. Article 74 (1) was amended by the Forty-second
Amendment, to the effect that the President shall, in the exercise of his
functions, act in accordance with the advice tendered by the council of
Ministers.^°^
Similarly in case of the power to be exercised by the Governor he is
also bound by the advice of the Council of Minister, and the Council of
ministers are not merely an advisory body. The Article 163 itself says that
the Governor can exercise his discretion only in case the Constitution
provides so;°^
Therefore after going through these provisions we can say that the
power under Article 72 is subject to the provisions of Article 74 of the
Constitution or in other words the Article 72 shall be read with Article 74
and same is the case with the Articles 161 and Article 163. The question
with regard to the power of the Governor to take decision came up for
consideration for the very first time before the Supreme Court of India in
Rai Sahib Ram Jwaya Kapoorsi. State of Punjab ^°^ wherein the Supreme
Court held that the Governor is bound by the advice of the Council of
Ministers. While the question of binding nature of advice of Council of
minister tendered to the President came up for consideration before the

105. V.N. Shukia, supra note 13 at 342.

106. The Constitution of India, supra note 3 Art. 163.
107. (1955) 2 SCR 225.

158
Constitutional Bench of five Judges of the Supreme Court of India while
dealing with Article 311 of the Constitution in Bk. Sardari Lai v. Union of
108

India and it was held by Supreme Court that the President shall exercise
the power himself and he shall never delegate the power to any person.^°^
The Judgment of this case was cited before another Constitutional Bench
of seven Judges in Shamsher Singh case,^^° but this time the Supreme
court changed its opinion and overruled judgment and observed that:
" the President as well as Governor act on the aid and
advice of the Council of Minister in executive action and is not
required by the Constitution to act personally without the aid
and advice of the Council of Ministers or against the aid and
advice of the Council of Ministers. Where the Governor has
any discretion the Governor acts on his own judgment. The
Governor exercises his discretion in harmony with his Council
of Ministers.^^^
This view expressed by the Supreme Court of India delivered in the
year 1974 binds the President and Governor to act on the aid and advice
of the Council of Ministers. Moreover in the year 1977 with the help of
Constitution (Forty-second Amendment) Act, 1976^^^ the advice of the
council of minister was made mandatory in the Constitution itself.
The question with regard to binding nature of the advice of the
Council of Ministers especially in cases of the exercise of pardoning power
of the President or Governor came up for consideration before the
Constitutional Bench of five Judges of the Supreme Court of India for the
very first time in Maru Ram case^^^ and in this case Supreme Court
delivered a landmark Judgment on pardoning power. This Constitutional
bench held that:
" the President is symbolic, the Central Government is the

108. AIR 1971 SC 1547.

109. /of., at 1551.
110. Shamsher, supra note 102.
111. Id, a\ 2209.
112. Constitution (Forty-second Amendment) Act, supra note 104.
113. Maru Ram, supra note 92.
159
 reality even as the Governor is the formal head and sole
repository of the executive power but is incapable of acting
except on, and according to, the advice of his Council of
Ministers. The upshot is that the State Government, whether
the Governor likes it or not, can advice and act under Article
161, the Governor being bound by the advice. The action of
commutation and release can thus be pursuant to a
governmental decision and the order may issue even without
the Governor's approval although, under the Rule of Business
and as a matter of constitutional courtesy, it is obligatory that
the signature of Governor should authorise the pardon,
commutation or a release. The position is substantially the
same regarding the President. It is not open either to the
President or the Governor to take independent decision or
direct release or refuse release of anyone of their own choice.
It is fundamental to the Westminster system that the Cabinet
rules and the Queen reigns being too deeply rooted as
fundamental to our system no serious encounter was met from
the learned Solicitor-General whose sure grasp of
fundamentals did not permit him to controvert the proposition,
that the President and the Governor, be they ever so high in
textual terminology, are but functional euphemisms promptly
acting on and only on the advice of the Council of Minister
have in a narrow area of power The subject is now beyond
controversy, this Court having authoritatively laid down the law
in Shamsher Singh Case AIR 1974 SC 2192. So, we agree,
even without reference Article 367 (1) and Sections 3 (8) (b)
and 3 (60) (b) of the General Clauses Act, 1897, that, in the
matter of the exercise of the powers under Articles 72 and
161, the two highest dignitaries in our constitutional scheme
act and must act not on their own judgment but in accordance
with the aid of the ministers.^ ^^

The Supreme Court of India following the decision of Shamsher

Singh Case^^^ emphatically concluded that the President possess no
power to decide a mercy petition himself and he can never take decisions
independently as he is bound to follow the advice of the Council of
Ministers while disposing of a petition filed under Article 72 of the
Constitution. Therefore refusal to follow the advice will tantamount to a

114. /of., at 146.

115. Shamsher, supra note 102.

160
direct breach of Article 74 as tlie case may be, which is a violation of the
Constitution, the ground for impeachment of the President.^ ^®
In the year 1988 in another landmark judgment delivered by the
Supreme Court of India in Indira Gandhi murder case^^^ while dealing
with the pardoning power of the President of India whereby the Supreme
Court reiterated and reaffirmed the decision given in Maru Ram case^^®
and held that:
The power to pardon is a part of the constitutional scheme,
and we have no doubt, in our mind, that it should be so treated
also in the Indian Republic. It has been reposed by the people
through the Constitution in the Head of the State, and enjoys
high status. It is a constitutional responsibility of great
significance, to be exercised when occasion arises in
accordance with the discretion contemplated by the context. It
is not denied, and indeed it has been repeatedly affirmed in
the course of argument by learned counsel Shh Ram
Jethmalani and Shh Shanti Bhushan, appearing for the
petitioners that the power to pardon rests on the advice
tendered by the Executive to the President, who subject to the
provisions of Article 74 (1) of the Constitution, must act in
accordance with such advice. We may point out that the
Constitution Bench of this Court held in Maru Ram v. Union of
India, (181) 1 SCR 1196: (AIR 1980 SC 2141) that the power
under Article 72 is to be exercised on the advice of Central
Government and not by the President on his own, and that the
advice of the Government binds the head of the State.^^^

120

The judgment in Maru Rams case was followed in all matters

decided thereafter by the Supreme Court.^^^ Hence as far as the manner
or the basis of exercising the pardoning power is concerned it can be

116. Maru Ram, supra note 92.

117. Kehar Singh v. Union of India, (1989) 1 SCC 204.
118. Supra note 92.
119. Kehar Singh, supra note 117 at 211.
120. Supra note 92.
121. State of Punjab v. Joginder Singh, 1990 Cri. L.J. 1464 at 1468, State
(Government of NOT of Delhi) v. Prem Raj, 2003 SCC (Cri) 1586 at 1590 and
Epuru Sudhakar v. Government of Andhra Pradesh, AIR 2006 SC 3385 cited
supra.

161
concluded on the basis of the above catena of cases decided by the
Supreme Court that now it is a well established law which is beyond any
shadow of doubt that in India the President and the Governor are bound to
act while exercising their power under Art. 72 or Article 161 as the case
may be, on the aid and advice of the Central Government or State
Government as provided under Article 74 and Article 161 respectively.
8. Guidelines for the exercise of Pardoning Power:
Neither the Constitution of India nor any other statute provides for
the guidelines that shall be followed for the exercise of the constitutional
power to grant pardon. The quest for laying down the guidelines for the
exercise of this power finds its roots in the wider interpretation of
Articles 21 and 14 of the Constitution. The preamble of Constitution of
India guarantees 'human dignity.' Article 21 includes fair procedure as
122
interpreted by the Supreme Court in Menaka Gandhi case and Article14
discards irrational and arbitrary exercise of power. All these features of our
constitution and the zeal for reformative justice led the Supreme Court in
Maru Ram case hold that:
"It is the pride of our Constitutional order that all power,
whatever its source, must, in its exercise, anathematise
arbitrariness and obey standards guidelines intelligible and
intelligent and integrated with the manifest purpose of the
power From this angle even the power to pardon, commute or
remit is subject to the wholesome creed that guidelines should
govern exercise even of Presidential power."^^^

Thus we can say that while deciding this case the Court was vigilant
about the fact that this power under the Constitution might be abused by
the authorities. The Supreme Court in this case after a careful examination
of the existing rules, came to the conclusion that no statutory guidelines
had been framed by the government. The Court also removed the doubt

122. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

123. IVIaru Ram, supra note 92 at 2171.

162
that the exercise of power under Article 72 and 161 of the Constitution can
be examined by the court. It was held that:
We have no hesitation to reject the notion that Articles
72/161 should remain uncanalised. We have to direct the
provisional acceptance of the remission and short- sentencing
schemes as good guidelines for exercise of pardon power-a
jurisdiction meant to be used as often and as systematically
as possible and not to be abused, much as the temptation so
to do may press upon the pen of power.^^^

Although the Court left it to the appropriate Government to devise

the consideration for the exercise of power under Articles 72 and 161 of
the Constitution, but still it observed:
We regard it as fair that until fresh rules are made in
keeping with experience gathered, current social conditions
and accepted penological thinking- a desirable step, in our
view- the present remission and release schemes may
usefully be taken as guidelines under Articles 72/161 and
orders for release passed. We cannot fault the Government, if
in some intractably savage delinquents, S. 433A is itself
treated as a guideline for exercise of Articles 72/161. These
observations of ours are recommendatory to avoid a hiatus,
but it is for Government, Central or State, to decide whether
and why the current remission rules, should not survive until
125
replaced by a more wholesome scheme.
An appropriate opportunity came before the Supreme Court in Kehar
Singh case^^^ to determine guidelines, if any, for the exercise of the power
vested in the President of India under Article 72 of the Constitution. The
counsel for the petitioner stressed upon the framing of guidelines. On this
the Court remarked that:
Learned counsel for the petitioners next urged that in
order to prevent an arbitrary exercise of power under Article
72 this court should draw up a set of guidelines for regulating
the exercise of the power It seems to us that there is sufficient

124. /cf., at 2173.

125. /cy., at 2175
126. Kehar Singh, supra note 117.

163
 indication in the terms of Art. 72 and in the history of the
power enshrined in that provision as well as existing case law,
and specific guidelines need not be spelled out. Indeed, it may
not be possible to lay down any precise, clearly defined and
sufficiently channelized guidelines, for we must remember
that the power under Article 72 is of the widest amplitude,
can contemplate a myriad kinds and categories of cases with
facts and situations varying from case to case, in which the
merits and reasons of State may be profoundly assisted by
prevailing occasion and passing time. And it is of great
significance that the function itself enjoys high status in the
constitutional scheme.^^^

Although in this case the court observed that it is not possible for the
Court to lay down any specific or precise guidelines for exercise of this
power but still it confirmed the ratio in Maru Ram case where it was held
that this power should not be exercised on wholly irrelevant, discriminatory
or mala fide considerations. The court specifically observed that:
As regards the considerations to be applied by the President
to the petition, we need say nothing more as the law in this
behalf has already been laid down by this court in l\/laru Ram
(AIR 1980 SC 2147f^^

Hence the Court categorically refused to spell out any kind of

specific guidelines and also gave reasons for doing so. It has rightly been
said by Mr. Rao^^^ that it emerges from this case that the President's
power under Article 72 is very wide. Its exercise is not trammeled by the
findings of the court in the final judgment of conviction. The law does not
require the President to give an oral hearing on mercy petition. However,
the President is bound to consider the mercy petition carefully before
taking a decision thereon. If reasons are given while rejecting a mercy
petition they can be tested in a court of law.
After the judgment in Kehar Singh case the Supreme Court faced

127. /d., at 217-18.

128. Id, at 2M.
129. P. P. Rao, "Kehar Singh's Case on Clemency", 1 SC/ALE 1(1989).

164
 130
the question of framing up of Guidelines in the Epuru Sudhakar's Case
This time also the Supreme Court was not in favour of framing guidelines.
It gave the reason for the same in the following words:
The exercise of power depends upon the facts and
circumstances of each case and the necessity or justification
for exercise of that power has to be Judged from case to case.
It is important to bear in mind that every aspect of the exercise
of the power under Article 72 as also under Article 161 does
not fall in the judicial domain. In certain cases a particular
aspect may not be justiciable. However, even such cases
there has to exist requisite material on the basis of which the
power is exercised under Article 72 or under Article 161 of the
Constitution, as the case may be. In the circumstances, one
cannot draw the guidelines for regulating the exercise of the
131
power.
Thus it can be concluded that no statutory guidelines have been
framed for the exercise of the power to grant pardon under the Constitution
of India. Although the question of framing the guidelines came up for
consideration before the Supreme Court so many times and it also said
that the absence of guidelines may go against the Articles 14 and 21 but
still neither the court framed the guidelines nor it asked the government to
do so.
9. Appropriate Stage for the exercise of power:
In England pardon may, in general, be granted either before or after
conviction and in case it has been granted before conviction it shall be
specially pleaded.^^^ In United States of America, "in absence of
constitutional restriction, the power to pardon may be exercised at any time
after commission of offence, either before legal proceedings are taken, or
during their pendency, or after conviction and

130. Epuru Sudhakar, supra note 97.

131. /d., at 3402.
132. Halsbury's Laws of England, Vol. - 8(2) (Butterworth and Co. Publishers Ltd.,
London, 4"^ edn. 1996) para 823; see also R. v. Biyes, (1861)) 1 B&S 311.
165
 133

judgment." Moreover in United state, as per Thompson J. "the power to

grant pardon may be exercised even after the full punishment awarded for
the offence has been undergone, if any of the legal consequences of the
conviction remain.^^'^
In India this question whether the power to grant pardon for an
offence can either be exercised before legal proceedings are taken or
during their pendency or it can only be exercised after the legal proceeding
comes to an end, arose for the very first time in the year 1954 before the
135

Madras High Court. The Division Bench of the Madras High court made
it clear that pardoning power can be exercised at any time after the
commission of the offence i.e. either before or after conviction.^^^
Moreover the bench further held that the release of the prisoners
condemned to death, as a result of a general amnesty granted by the State
Government when their trials were referred for confirmation of their
sentence by High Court, does not amount to an act of interference with the
due and proper course of justice, as even after their release the power of
the High Court to pronounce upon the validity, propriety and correctness of
the conviction remains unaffected.^"^^
This question of issuance of pardon came up for consideration
before the Hon'ble Supreme Court in one of the very famous cases which
138

is popularly known as Nanavati's case. Basically the facts of the case

were that the petitioner Nanavati was second in command in I. N. S.
Mysore, which came to Bombay in the beginning of March, 1959. On April

133. Corpus Juhs Secundum, Vol.- 67A, (St. Paul, Minn., West Publishing Co. United
States, 1989) Pardon & Parole, para 12; see also Ex parte Garland, (1886) 4
Wall 333.
134. United States v. Jones, 2 Wheeler's Crim. Cas. 415.
135. In re Maddela Yenra Chhannugadu, AIR 1954 Mad 911.
136. /d., at 917.
137. W., at 918.
138. K. M. Nanawatiy. State of Bombay, AIR 1961 SC 112.

166
27,1959, the petitioner was arrested in connection with a charge of murder
under Section 302 of the Indian Penal Code, 1860. He was produced
before the Additional Chief Presidency Magistrate, Greater Bombay on
April 28, 1959. The Magistrate remanded him to police custody that day.
On the very next day the Magistrate received a letter from the Flag Officer,
Bombay, to the effect that he was ready and willing to take the accused in
naval custody. Thereupon the Magistrate made the order directing that the
accused should be detained in Naval Jail and Detention quarters in
Bombay. The petitioner continued to remain in naval custody all along. In
due course, he was placed on trial before the Sessions Judge, Greater
Bombay. The trial was by a jury. The jury returned the verdict of 'not guilty'
by a majority of eight to one. The learned Sessions Judge made a
reference to the High Court under Section 307 of the then Code of Criminal
Procedure, 1898, disagreeing with the verdict of the jury. The High Court
accepted the reference and convicted the petitioner under Section 302 of
the Indian Penal Code, 1860 and sentenced him to imprisonment for life.
On the same day the Governor exercised the power under Article 161 and
suspended the sentence passed by the High Court until the appeal
intended to be filed by him in the Supreme Court against his conviction and
sentence is disposed of, subject to the conditions that he shall be detained
in the Naval Jail Custody in I. N. S. Kunjali.

In pursuance of the Judgment of the High Court, a writ issued to the

Sessions Judge, Greater Bombay, communicating the order of the High
Court convicting and sentencing the petitioner. The Sessions Judge issued
a warrant for arrest of the accused and sent it to the police officer incharge
of the City Sessions Court for Greater Bombay for execution. The warrant
was returned unserved with the report that the warrant could not be served
in view of the order passed by the Governor of Bombay suspending the
sentence upon the petitioner. The Sessions Judge then returned the writ
together with the unexecuted warrant to the High Court.

167
 The matter of unexecuted warrant was placed before the Division
Bench of the High Court, which directed that in view of unusual and
unprecedented situation arising out of the order of the Governor the matter
should be referred to a larger Bench. A Special Bench of five Judges heard
the matter. The High Court examined the validity of the action taken by the
Governor came to the conclusion that it had the power to examine the
extent of the Governor's power under Article 161 of the constitution and
139
whether it had been validly exercised in the instant case. After an
elaborate examination of the questions raised before the Court, the Special
Bench came to the conclusion that the order passed by the Governor was
not invalid and pronounced that "in India also, the power of pardon can,
therefore, be exercised, before, during or after trial. This view has been
taken by the Madras High Court In re ILR 1955 Mad 92: (AIR 1954 Mad
911)."^'°
The High Court also considered the issue that the Orders of the
Governor issued under Article 161 affects the power of the Supreme Court
to deal with appeal to be filed by the accused. Order XXI Rule 5 of the then
Supreme Court Rules states:
Where the petitioner has been sentenced to a term of
Imprisonment, the petition shall state whether the petitioner
has surrendered. Unless the Court otherwise orders, the
petition shall not be posted for hearing until the petitioner has
141
surrendered to his sentence.
On this issue the Bombay High Court held that "as the sentence
passed upon the accused has been suspended, it is not necessary for the
accused to surrender to his sentence. Order XXI Rule 5 of the Supreme
Court Rules will not, therefore, apply in this

139. State v. K. M. Nanavati, AIR 1960 Bom 502 at 506.

140. Id, at 508.
141. Supreme Court Rules, 1950, Order XXI Rule 5 (this provision was inserted in the
year 1960 in the Supreme Court Rules, 1950 and now this provision is contained
in Supreme Court Rules, 1966, Order XXI Rule 6).

168
case." Finally the Court held that as the order made by the Governor
had not been shown to be unconstitutional or contrary to law, the warrant
should not be reissued until the appeal to be filed in the Supreme Court
had been disposed off, unless the order made by the Governor stands
cancelled or withdrawn before that event.^^^
The petitioner approached the Supreme Court the under the Special
leave to appeaP^^ alongwith an application under Order XLV Rule 2 and 5
of the Supreme Court Rules for exemption from compliance with Order XXI
Rule 5 of these Rules. The petitioner/applicant stated that, soon after the
arrest the petitioner/applicant throughout the trial before the Sessions
Court and hearing of the reference in the High Court had been in naval
custody and continued to be in that custody, and during this period he
maintained good behaviour. He submitted that he was ready and willing to
obey any order of the Supreme Court but since the petitioner/Applicant
was not a free man as a result of the order passed by the Governor of
Bombay under Article 161 of the constitution, therefore, it was not possible
for him to comply with the requirements of Rule 5 of the Order XXI of the
Supreme Court Rules. He therefore, prayed that he may be exempted from
compliance with the aforesaid rule and that his petition for special leave to
appeal be posted for hearing without his surrendering to his sentence. The
special leave petition alongwith the application for exemption aforesaid
was placed before a division Bench. This Division Bench opined that the
plea immediately raises an important Constitutional question about the
scope and extent of the power conferred on Governor under Article 161 of
the Constitution and that is a constitutional matter which has to be heard
by the Constitutional Bench of the Supreme Court.
The Constitutional Bench of the Supreme Court took up the matter

142. K. M. Nanavati, supra note 139 at 512.

143. Ibid.
144. The Constitution of India, supra note 3 Art. 136.

169
and after hearing a full argument which covered English, American and
Indian authorities on the pardoning power, the Court by a majority of 4:1
held that:
As a result of these considerations we tiave come to ttie
conclusion that the order of the Governor granting suspension
of the sentence could only operate until the matter became
sub judice in this Court on the filling of the petition for special
leave to appeal. After the filing of such a petition this Court
was seized of the case which would be dealt by it in
accordance with law. It would then be for this court, when
moved in that behalf, either to apply Rule 5 of Order XXI or to
exempt the petitioner from the operation of that rule. It would
for this Court to pass such orders as it thought fit as to
whether the petitioner should be granted bail or should
surrender to his sentence or to pass such other or further
orders as this Court might deem fit in all the circumstances of
the case. It follows from what has been said that the Governor
had no power to grant the suspension of sentence for the
145
period during which the matter was sub Judice in this Court.
Therefore according to this judgment it can be concluded that the
power to grant pardon etc. can be exercised by the executive at any time.
But if the accused approaches the court then the order of suspension of
sentence shall not remain in force and the accused will be bound by the
rules and regulations of the court. Just like in this case the Supreme Court
held that the order of the Governor was valid till the Supreme Court came
to be in seizin of the case i.e. upto the stage of filling the appeal in
Supreme Court against the judgment of Constitutional bench of Bombay
High Court. In other words, so long as the power of the Supreme Court is
not invoked, the order of the Governor stood valid and effective. The
movement the Supreme Court was moved, the Governor's order could not
be used or utilised to override the rules framed by the Supreme Court. This
contention that the power to grant pardon can be exercised at any time but
the power to suspend sentence will not operate during pendency of the

145. K. M. Nanawati, supra note 138 at 125.

170
matter before the court, has been emphatically made by the Supreme
Court in the following words:
In the present case, the question is limited to the
exercise by the Governor of his powers under Art. 161 of the
Constitution suspending the sentence during the pendency of
the special leave petition and the appeal of this Court; and the
controversy has narrowed down to whether for the period
when this Court is seizin of the case the Governor could pass
the impugned order, having the effect of suspending the
sentence during that period. There can be no doubt that it is
open to the Governor to grant a full pardon at any time even
during the pendency of the case in this Court in exercise of
what is ordinarily called "mercy jurisdiction". Such a pardon
after the accused person has been convicted by the Court has
the effect of completely absolving him from all punishment or
disqualification attaching to a conviction for a criminal offence.
That power is essentially vested in the head of the executive,
because the judiciary has no such 'mercy jurisdiction'. But the
suspension of the sentence for the period when this Court is in
seizin of the case could have been granted by this Court itself
If in respect of the same period the Governor also has power
to suspend the sentence, it would mean that both the judiciary
and the executive would functioning in the same field at the
same time leading to the possibility of conflict of jurisdiction.
Such a conflict was not and could not have been intended by
the makers of the Constitution. But it was contended by Mr
Seervai that the words of the Constitution, namely. Art. 161 do
not warrant the conclusion that the power was in any way
limited ort fettered. In our opinion there is a fallacy in the
argument in so far as it postulates what has to be established,
namely, that the Governor's power was absolute and not
fettered in any way. So long as the judiciary has the power to
pass a particular order in a pending case to that extent the
power of the Executive is limited

Hence the Supreme Court made it clear that the Governor can
exercise his Constitutional power to grant full pardon at any time. This
power can be exercised even during the pendency of appeal. Once such
orders are passed the court will be debarred from hearing an appeal. But
at the same time the power to suspend a sentence is subject to the Rules

146. Id., at 123.

171
made by the Supreme Court with respect to cases to be filed before the
Apex Court.
Therefore if the orders of suspension were issued then the same will
not operate during the period when the court is in seizin of the matter. The
only drawback of this judgment was that it remained silent on one question
that is, whether it will amount to contempt of court if the Executive will
exercise the power during the pendency of appeal and thereby suspending
the sentence of the accused.
The Supreme Court may have avoided this question because the
facts of the case were a bit different. In this case the executive power to
grant suspension was not exercised during the pendency of the appeal.
The problem may arise when an appeal is pending before the Supreme
Court and the accused is in custody for the sentence as his bail was
refused by the Supreme Court and at this time the Governor or the
President issues an order of suspension of sentence and thereby frustrate
Court's order of refusal of ball. In such type of a case whether it will
amount to contempt of court? In Nanavati's case it appears that the
Supreme Court felt it better to avoid the conflict between the executive and
the judiciary. The Senior Advocate of Supreme Court Mr. Nalin Chandra
Banerjee opined that:
invoking tlie aid of the principle of Harmonious
Construction, one feels unsafe to pronounce affirmatively, and
dogmatically, and solution of the problem and the only way in
which, the problem can be answered is to say and suggest
that neither the executive nor the judiciary need be impatient
and/or over jealous and if both have respect for each other's
rights a conflict can be avoided and the so called problem,
which otherwise appears to be baffling, will never arise
necessitating a solution and/or affirmative decision of this
question. I agree this is only avoiding and not answering the
147
question posed above.

147. Nalin Chandra Banerjee, "Whether it will amount to contempt of court if an

accused is granted pardon by the executive during pendency of judicial
proceedings", 12 LQ, 98.

172
 Therefore to conclude it can be said tlnat the power to grant full
pardon can be exercised by the President or the Governor at any stage of
the case. But the power to grant suspension works only when the matter is
not before the Court of law. Once the convict approach the Court he is
bound by the rules and regulations of the Court concerned and the order of
suspension comes to an end immediately after the matter comes within the
hands of judiciary.
10. Effect of pendency of mercy petition on Jurisdiction of Court:
It has already been discussed whether the executive can pass any
order when the matter is pending adjudication before the court. Now
another question that arises over here is, whether the court can entertain
any petition which is in seizin of the President or the Governor? This
question arose before the Supreme Court for the very first time exactly
after 15 years from the date of decision in Nanavati case i. e. in the year
1976.^"*^ In this case the petitioner was sentenced to death in the year
1969 by the trial court. The death sentence had been confirmed right up to
the highest court of India. Indeed, he moved mercy petitions and
consequential writ petitions more than once and managed to avoid the
execution till the filing of the petition. On the last occasion the same
advocate pleaded that his client's mercy petition was not being forwarded
by the Superintendent of the Jail and prayed that he may be directed by
the Court to forward it to the President. The Supreme Court did so and
suspended the hanging forthwith as a last chance. Accordingly the mercy
petition was forwarded to the President of India. The matter was under the
consideration of the President of India and thereafter a petition was filed
for stay of execution of the death sentence. After going through all the
aspects of the case the Supreme Court held that:
Human life is a noble gift and hanging to death,
however legally sanctioned, may sound inhuman, subject of

148. Mohinder Singh v. State of Punjab, Al R 1971 SC 2299.

173
 course, to the conspectus of factors relating to the criminal
and the crime. Nevertheless, the situation here is aggravated
by the distressing circumstance that the death sentence has
been gruesomely hovering over head for around six years.
Legal justice belongs to the court but compassionate
commutation belongs to the top executive. Being functus
officio, we have no alternative but to say 'no' to the prayer for
stay of execution. ^^^

Therefore it becomes clear that where an application for

commutation is under the consideration of the President of India or the
Governor, the Courts whether High Courts or the Supreme Court will have
no jurisdiction to pass any order whether interim or other. The person shall
move to the President or the Governor as the case may be for stay of the
execution or any other order in the matter.
This position of non-interference remained till 1983. But in the year
1983 the Supreme Court commuted the death sentence of the condemned
prisoner into life sentence despite the fact that a mercy petition was
150

already pending before the President of India. The court ruled that the
delay of more than two years in disposal of mercy petition is bad and
entitles the applicant for commutation of death penalty into life
imprisonment.^^^ But immediately after this judgment the Supreme Court
within a period of one month overruled its judgment and refused to fix any
time limit for the disposal of the mercy petition.^^^ Once again in the same
year the Supreme Court commuted the 2 years and nine months old death
153
sentence into life imprisonment.
In the year 1989, the Supreme Court once again jumped into the
domain of the President and commuted the death sentence of Gyassi Ram

149. /d, at 2300.

150. T. V. Vatheeswaran v. State of Tamil Nadu, Al R 1983 SC 361.
151. Ibid.
152. Sher Singh v. State of Punjab, Al R 1983 SC 465.
153. Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1983 SC 231.

174
into life imprisonment.^^'* In this case the mercy petition was pending
before the President for last eight to nine years hence the court found it
necessary to interfere and commute the sentence. But this time also the
Supreme Court did not fix any time limit for disposal of mercy petition.
Therefore, it is clear from the above mentioned cases that earlier the
Supreme Court refused to interfere in the field of the executives but later it
did not hesitate to do so. Even at present the law is the same as the
judgment of Gyassi Ram case and it has not been overruled till date.
11. Revocation of Pardon:
This is quite possible that the pardon granted by the executive may
be revoked or withdrawn. The question of revocation may come up for the
consideration of the executive in two cases. The very first case where the
pardon can be revoked is one when the pardon itself is obtained by fraud,
misrepresentation or misinformation. In other words a pardon procured by
false and fraudulent representation or an intentional suppression of the
truth is void, even though the person pardoned had no part in perpetrating
155

the fraud. The second one is in case of violation of the condition

imposed by the executive on the person seeking pardon. As a matter of
fact a pardon can either be free or conditional.^^^ The fulfillment of the
condition is always necessary and the breach of the same can always put
the person behind the bars once again.
So far as the first case is concerned, the law applicable in United
States of America has been summed up in Corpus Juris Secundum in the
following words:
There is autliority for the view that a pardon may be
held void where it appears from the pardon that the pardoning
power was misinformed; but there is also authority for the view
that intentional falsehood or separation of truth is necessary,

154. Madhu Mehta v. Union of India, (1989) 3 SCR 774 : AIR 1989 SC 2299.
155. Corpus Juris Secundum, supra note 133 para 16; see also American
Jurisprudence 2cl, Vol.- 59, (West Group, A Thomas Company, 2002) at 43.
156. l-lalsbury's Laws of England, supra note 132 para 826.

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 and that misinformation given in good faitti and in ttie belief in
its truth is insufficient to avoid a pardon.^^^

Hence in United States if a pardon is obtained by fraud then the

result will be the revocation of the pardon. But in India the law relating to
this aspect requires an interpretation. So far as the revocation is
concerned, it is evident that there is no specific reference in this regard in
either Article 72 or Article 161 of the Constitution of India. But merely
because Article 72 and Article 161 of the Constitution have not specifically
provided the same, would not mean that such power was not intended to
be exercised.^^® By virtue of Section 14 and Section 21 of the General
159

Clauses Act which is applicable for the purpose of the interpretation of

the Constitution as declared by the Constitution itself,^^° the withdrawal of
an order of the executive issued while exercising a Constitutional power, is
permissible.^®^
Section 14 and Section 21 of the General Clauses Act deal with
powers conferred to be exercisable from time to time and power to issue,
to include power to add to, amend, vary or rescind notifications orders,
rules or bye-laws. They read as follows:
Powers conferred to be exercisable from time to tlme:-
(1) Where, by any Central Act or Regulation made after the
commencement of this Act, any power is conferred then
unless a different intention appears that the power may be
exercised from time to time as occasion requires.
(2) This Section applies also to all Central Acts and
Regulations made on or after the fourteenth day of January,
1887.^^^
Power to issue, to include power to add to, amend, vary
or rescind notifications, orders, rules or bye-laws:- Where,

157. Corpus Juris Secundum, supra note 133 para 16.

158. Epuru Sudhakar, supra note 97 at 3397.
159. General Clauses Act, supra note 58 ss. 14 and 21,
160. The Constitution of India, supra note 3 Art. 367.
161. Sampat Prakash v. State of Jammu and Kashmir, AIR 1970 SC 1118.
162. Supra note 58 s. 14.
176
 by any Central Act or Regulation, a power to issue
notifications, orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to,
amend, vary or rescind any notifications, orders, rules or bye-
laws so issued.^^^

Section 14 of the General Clauses Act makes it clear that if any

power is conferred by any Central Act or Regulation made after the
commencement of the General Clauses Act then that power can be
exercised from time to time as the occasion may require. The power to
grant pardon also falls under the four corners of this Section, hence an
order of pardon issued can always be modified if the occasion requires
such as in case of a pardon received or obtained on false or fraudulent
ground. Whereas the Section 21 of the Act says that if a power to issue
notification, order etc is conferred then this power shall include the power
to add to, amend, vary or rescind such notification, order etc.
The Scope and ambit of the Sections 14 and 21 of the General
clauses Act have been analysed by the Supreme Court in Sampat Kumar
case.^^'* It was inter alia held that:
This provision is clearly a rule of interpretation which
has been made applicable to the Constitution in the same
manner as it applies to any Central Act or Regulation. On the
face of it, the submission that Section 21 cannot be applied to
the interpretation of the Constitution will lead to anomalies
which can only be avoided by holding that the rule laid down in
the section is fully applicable to all provision of the
Constitution.^^^

Therefore it can be concluded that just like United States of America

in India if a pardon is obtained by fraud it can be revoked. In a latest
judgment the Supreme Court itself while dealing directly with the

163. /cf., s. 21.

164. Sampat Prakash, supra note 161.
165. W., para11.

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revocation of pardon after taking into consideration the Sections 14 and 21
of the General Clauses Act and the position in Unites States held that:
Inevitable conclusion, therefore, is that if it comes to the
knowledge of the Government that the pardon has been
obtained on the basis of manifest mistake or parent
misrepresentation or fraud, the same can be rescinded or
cancelled.

The second case where a pardon can be withdrawn as discussed

earlier is when any condition of pardon is revoked. Here also the above
mentioned two provisions i.e. Sections 14 and 21 of the General Clauses
Act will come into play and the pardon issued will be revoked. Moreover
similar provisions are specifically provided in Section 432 of the Code of
Criminal Procedure which clearly provides that the person can be arrested
without warrant and will have to undergo the unexpired portion of the
sentence in case of violation of any condition on which a sentence has
1R7

been suspended or remitted.

12. Conclusion:
The Constitution of India not only contains the power to grant pardon
but also provides for the exercise of power to grant reprieves, respite,
remission and commutation of a sentence. All these powers can be
exercised by the President of India and the Governors of the concerned
State. It is true that the nature manner etc. of this pardoning power to be
exercised by both of them is similar but still there is no clash of power
conferred upon these two distinct bodies. The main reason behind this is
that the area or extent of this power has already been defined specifically
by the founding father of the Constitution of India. Moreover it has also
been taken care of that the power of the President to grant pardon shall
not come in conflict with the power of the officers who enjoy the similar

166. Epuru Sudhakar, supra note 97 at 3398.

167. The Code of Criminal Procedure, 1973 (Act II of 1974), Chapter XXXII, s. 432(3).

178
kind of powers under the Laws for the Armed forces. The major loophole is
that this constitutional power is required to be exercised only on the aid
and advice of the council of ministers. Moreover, the Constitution does not
provide for any specific procedure and guidelines to be followed for
presentation and disposal of the mercy petitions, thereby increasing the
possibility of misuse of the power. Therefore the ruling f)arty can easily
misuse or abuse this precious power.

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