Conclusion and

suggestion
 CHAPTER – VII

CONCLUSION AND SUGGESTIONS

CONCLUSION

The Constitution of India endorses two remarkable doctrines, i.e. the rule of law
and separation of powers. These are emphasised on the use of power within the strict
line. The exercise of power vide, the doctrine of separation of powers is subjected to
rule of law. The executives, who are given the special power under Articles 72 and 161,
are expected to exercise the same with all fairness and with an unbiased approach. In
India, many a times the invoking of the pardoning power has been viewed with
suspicion. The study delves on the issue of fair exercise of the pardoning power
conferred on the executives, viz., the President and the Governors of a state, under
Article 72 and 161 of the Constitution of India.

The Historical approach of the study reveals that in the early days the pardoning
power of the executive remained as an act of grace. The prerogative power had lost its
importance due to the prevalence of the doctrine of separation of powers. The checks
and balances in the constitutional scheme added with the development of a criminal
jurisprudence which now examines the crime and criminal in a humanitarian and
human rights perspective, the exercise of this power is more viewed as a process of
rehabilitation. The invoking of this power by the high executive also draws the
implications of doctrine of separation of powers in the sense whether an order passed
by the high executive can be subjected to scrutiny by judiciary.

The spirit of the Constitution of India is that the power emanates from the
common man. The Constitutional scheme is that the President or the Governor though
extended with an extra ordinary power, the same need to be exercised only on the
recommendation of the Council of the Ministers. The analysis made herein the previous
chapters reveals that the pardoning power has not been genuinely and fairly exercised
at all circumstances by the executive authorities in India. Instances are not wanting
wherein the power was put to abuse during the disposal of mercy petitions. This results
not alone in the disruption of the administration of the criminal justice system by abuse
of constitutional powers and also undermines the role and status of the constitutional
authorities, the head of the nation and states.

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 The process of decision-making on the mercy petitions is not open to the public.
It lacks the needed transparency. Public Information on the decision-making and
disposals of mercy petitions has become accessible only after 1981. The Supreme
Court in Maru Ram, Epuru Sudhakar and Shatruhan Chauhan has guidelined the
exercise of this power by the high authority.

The study has examined the pardoning power vested with the President, his role
and the disposal of several mercy petitions. The study reveals that the executive while
exercising the power under Article 72 take unduly long time and at times very swift
decisions are taken, either of which are not aimed at safeguarding public interest. The
delayed disposal of mercy petitions, especially on death convicts, are capable of
causing injustice to the deserved and needy and undermines the executives’ status. The
reason for delay is that either pre-occupation on the part of the executive on other
avenues or indecisiveness in taking a decision. The issue and affect of delay in deciding
the petition on pardon stands resolved after nearly three decades. The Indian Judiciary
was seized of this issue from Vatheeswaran to Triveniben and finally, resolved in
Shatrughan Chauhan & Anr. v. Union of India & Ors. 468 The supervening events
theory evolved in Vatheeswaran taken until Trivenben now stands overruled. An
analysis of the exercise of this extraordinary power in India reveals that this power
most of the times never been exercised in a fair manner. The exercise of this power by
Dr. A.P.J. Abdul Kalam and Prathibha Patel are instances contradicting one with other.
Another instance being, Afzal Guru’s execution had been carried out by the political
demands rather than fair exercise of this executive power. The disposal of Afzal Guru’s
petition has been brought to centrestage and became a political issue during election.
The Council of Ministers are one who act as political executives based on whose advice
the President and Governors dispose of the mercy petitions. In India, more caution is to
be exercised to avoid political considerations or other influences during the exercise of
this power. The manner and instances wherein urgency has been shown in the disposal
of mercy petitions and at times after speedy disposal secretive executions are being
done raise serious doubts on the fair exercise of this power. Political pressures when
exercised in the decision making of the high prerogative it subverts the very principle
and the ideology of conferring this power. The credibility of the justice system tend to

468
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

248
raise doubt and the constitutional promise of equality before law will suffer a terrible
blow.

Disparity shown in the award of sentence has not been considered by the
judiciary when reviewing the order of an executive. Dhananjoy Chatterjee was
executed after 13 years of delay. Three days after the execution of Dhananjoy
Chatterjee, a yet another issue relating to the petition of the rapist Rahul alias
Raosaheb, who is also convicted and sentenced to death came up before the Supreme
Court which commuted the sentence to life imprisonment. In the study of Amnesty
International India,469 made a study on these two cases and concluded that they were
well differentiated, the former being one who was a menace to the society whereas the
latter was not so. The study raises two pertinent questions:

i) Would Rahul’s fate had been different if his case had been heard by another
Bench instead of Justice Balakrishnan and Lakshmanan who chose to
commute the sentence?
ii) Would Dhananjoy Chatterjee’s fate would have been different if these two
judges heard his case?

In the words of Justice Anand while upholding Dhananjoy Chatterjee’s

execution, explicitly accepts the disparities in sentencing “some criminals get very
harsh sentences while many receive grossly lesser sentences for equivalent crimes and
shockingly large number and even go unpunished thereby, weakening the system’s
very credibility”. In Delhi gang rape case, there was a demand for death sentence for
the rapists by the protestors and consequently the Delhi fast track court passed the
same. These disparities in sentencing have never been brought to the notice of the
executives during the disposal of the mercy petitions.

The Presidents who held the posts in the past decades were either hesitant to
grant pardon, Prathibha Patel, an exception or awarded taking any decision even after a
formal recommendation from ministries. Mercy petitions submitted in case of murder
of political personalities and acts of terrorism are not normally treated with
compassion. In the case of Indira Gandhi’s assassination, the mercy claim was rejected
whereas, the same was entertained in the case of Rajive Gandhi’s assassination. In
Kehar Singh’s case, the killing of the then Prime Minister Indira Gandhi was related to

469
Lethal Lottery: The Death Penalty in India, Amnesty International India and PUCL, May 2008.

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‘Operation Blue Star’, an order to remove the separatists from the Golden Temple at
Amritsar. The killing of many were described as a political disaster. Least considering
the Nanavathi Commission Report the judiciary passed the death sentence on Kehar
Singh. The decision often described as not alone a political but a judicial murder as
well. The evidence as against Kehar Singh was insufficient and inconclusive to order
death penalty. Yet, the broader political circumstances dominated the decision making
rather than rules of evidence. In case of Rajiv Gandhi’s assassination, the mercy
petitions by almost all the convicts were rejected except that of Nalini. The Supreme
Court later commuted the death sentence of others on the ground of delay in disposing
their mercy pleas. The Supreme Court had reminded the State Government of the
power vesting with them to order for release of convicts. The Tamil Nadu Governent
reminded of its powers by the cabinet decision taken on February 19th decided the
release of convicts-Santhan, Murugan, Perarivalan, Nalini, Robert Pious, Jayakumar
and Ravichandran and formally sent the same for approval to the Centre in accordance
with Section 435 of the Criminal Procedure Code, 1973. At the Supreme Court’s
intervention the Tamil Nadu Government’s decision to release the convicts remained
stayed.

Plea for mercy by members who are involved in terrorist activities and entailed
conviction are not normally entertained either by the judiciary or by the executive
heads. Instances are there where members who are convicted under TADA in reality
may not have played an active role and the convictions would have been mostly on the
basis of surmises and fixing of joint liability through evidences which are purely
circumstantial. Many a mercy petitions placed before the President has been
consistently rejected in India. The petitions of Kehar Singh, Bhullar, Afzal Guru,
Santhan, Murugan and Arivu etc., are notable few. In Bhullar’s case, the Honourable
Supreme Court upheld the death sentence with 2:1 majority by a three- judge Bench,470
Justice M.B. Shah who has delivered the dissenting judgment observed that when the
rest of the accused who are named in the confessional statement are not tried and
convicted. He was against convicting the appellant solely on the basis of the so-called
confessional statement recorded by the police officer. After a long delay, in Afzal
Guru’s case, the MHA rejected the petition for mercy. A fresh plea has been forwarded
again on 21st January, 2013 and forwarded before the President Pranab Mukherjee who

470
Devender Pal Singh Bhullar v. State of N.C.T of Delhi, (2002) 5 SCC 234.

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rejected the same whereafter he was hanged on Feburary 9th, 2013. It is worth
mentioning here that the judiciary has ruled later that there could be no good reason to
disqualify all TADA cases as a class. The delay in the execution of death sentence
being vital each case requires consideration on its own merit and facts, the Court ruled
the principle applies mutatis mutandis both for the Union and States.

The clemency power is exercised at times not on merits but on political and
other extraneous considerations. The pardoning power vested with the high
functionaries by the Constitution can be manipulated to favour criminal politicians. The
instances are several where abuse of the pardoning power by the Governor has been
noted by the Supreme Court. The Supreme Court directed reconsideration of the mercy
petitions which are decided without proper materials by the Governor. In three cases,
Satpal, Swaran Singh and Epuru Sudhakar, the Supreme Court went to the extent of
quashing the impugned order of the Governor. The cases clearly establish the existence
of political partisanship during the exercise of the pardoning power of the Governor. In
Swaran Singh’s case471, the Governor was not informed about vital facts including the
convicts involvement in five other criminal cases of serious nature. the Supreme Court
in Satpal v. State of Haryana472 made a sarcastic remark that “the entire file has been
produced before us and we notice the uncanny haste with which the file has been
processed and the unusual interest and zeal shown by the authorities in the matter of
exercise of power to grant pardon”. The Court held that the order of the Governor
question has been vitiated. The Governor having not been advised properly with all
relevant materials the Supreme Court observed that they had no other option but to
quash the same. In Epuru Sudhakar’s case,473 the Supreme Court quashed the order
being passed suppressed of pending criminal cases. The abovesaid cases pointedly
focused the political influence that may have the say in the decision making process of
the governor. An illegal and unjustifiable order when passed is nothing short of abuse
of the precious power conferred on the executives. The study reveals the arbitrary
exercise and misuse of power by the office of the governors. The judicial review of
decisions which are imputed with abuse gave opportunity for rectifying the same. There
may remain several such orders passed by the executives which has not gone for
challenge. In Nalini and others v. The Governor, State of Tamil Nadu, the rejection of
471
Swaran Singh v.State of U.P., AIR 1998 SC 2026.
472
Satpal v. State of Haryana, AIR 2000 SC 1702.
473
Epuru Sudhakar v. Govt of A.P., AIR 2006 SC 3385.

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the mercy petition by the Governor of Tamil Nadu is challenged. The Governor did not
get any aid and advice from the Council of Ministers. The State had countered that the
petition was forwarded to the Governor by the Chief Minister who held the office of the
Home Minister as per the Tamil Nadu Government Business Rules. Mercy petitions
were not required to be brought before the entire Council. The High Court ordered that
the said Business rules did not override the Constitutional requirement. The
recommendation of the Minister of Home Affairs is a recommendation of the Council
of Ministers. As per the Article 75(3) of the Constitution, ‘the Council of Ministers
shall be collectively responsible to the House of the People’. It was an incorrect reading
of the law by the High Court as it ignored the role and nature of the Rules of
Business474 and the principles of collective responsibility of the Council of Ministers.

The Governor’s order on various occassions did not contain any reference to the
order of conviction and sentence imposed on the accused persons. It is self-evident that
the power of the Governor under Article 161 of the Constitution is invoked in favour of
anyone, the condition precedent is that such person or persons must be convicted of any
offence against any law and will be subjected to undergo the sentence. Therefore, an
omission of any reference to an order of conviction or sentence in the Governor’s order
in respect of the accused is really of no consequence. At the time of exercising the
pardoning power under Article 161 by the Governor, there was an appeal pending
before the High Court. The Governor did not refer to this fact in his order. So the Court
came to the conclusion that all relevant facts were not possibly placed before the
Governor. 475 The judiciary executed self-restraint not to attribute personally the
functioning of the office of the Governor.

The role of the President is far more convincing compared to governors’ in the
exercise of the pardoning power. Delay and political considerations dominate the
decision making of petitions before them. Many reasons are lacking in the proper
exercise of the pardoning power by the Governor. The common reason is political
partisanship. On the part of the governor, the abuses at times are apparent to make one
re-think as to the conferring of such powers on this office.

474
At the central level, the Government of India (Transaction of Business) Rules, 1961 and the
Government of India (Allocation of Business) Rules, 1961 entirely functioning by these rules.
475
Narayan Dutt v. State of Punjab, AIR 2011 SC 1216.

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An extensive study on the factors that contribute for the unfair exercise of this noble
power by the executives reveal:

 poor understanding of the pardoning power provided under the Constitution of

India.
 Ignorance as to the manner in which the power is to be exercised
 Utmost fairness and genuine exercise being one an integral factor, the status of
a person who is occupying the position is vital.

The pardoning power of the executive is a check on the judicial act which may
occassion undue harshness or miscarriage of justice. The executives, many a times fail
to realise the ideal vision in the invoking of clemency jurisdiction which results not
only lowering the image of the office but also trampling the justice process.
Particularly, they are lacking in fixing the grounds for a pardon and ignoring
completely the principle of proportionality. The Supreme Court has set right the delay
in the disposal of the mercy petitions as a ground to commute the sentence of death to
life imprisonment. It is, therefore, necessary to develop a non-political mechanism for
the exercise of this power so that it is purely on the merits of each case without any
political nuance, the petitions are decided. On its nature, it is clear that the pardoning
power of the executive under our Constitutional scheme attracts partisanship. Curbing
partisanship is necessary in the disposal of mercy petitions. The President and the
Governors are not having the discretion to examine any extenuating circumstance and
alter the death sentence without the advice of the government. The needed solution is to
pre-empt, prejudice or political nexus in the decision making process of pardon.

The way forwarded

To reduce political partisanship on the exercise of the pardoning power, various

steps have been taken:

 Responses on reducing partisanship

For the proper exercise of the pardoning power, the same should be exercised
after due consultation other authority with legal competency. The 35th Law
Commission, while discussing the issue of retention of capital punishment, proposed a
revision in the exercise of pardoning power and an executive consultation before the
grant of mercy but rejected on the ground that it is against the nature of clemency
jurisdiction.

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 The 41st Law Commission report, 1969 discussed the pardoning power of the
executives at the time of the enforcement of the new Code of Criminal Procedure,
1973. It considered the suggestion of the Ministry of Home Affairs that the
Government should be required to consult the appropriate Court before granting
pardon. Where pardon is sought on the ground of miscarriage of justice or discovery of
new evidence, the practice in England is to consult the judges by a reference made
under Section 19 of the Criminal Appeal Act, 1907. The provision does not permit all
cases for such a reference but leaves it to the sole discretion of the secretary of the
State. Since the power to grant pardon is derived from the Constitution, it would be
more appropriate to lay down by statute the procedure for the exercise of power. Even
with regard to suspension and remissions of sentences provided under section 401 (2)
prior consultation is not mandated.476

A discussion on the issue rose again in 1970 when the 48th Law Commission
suggested consultations with judges to be made mandatory by statutory provisions to
avoid arbitrariness, political considerations and overall suspicion on decisions taken by
the executive. Neither the constitutional scheme nor any statute provide for the same.
The issue whether the prerogative power can be made subservient to statutory
provisions remains unanswered.

Opinion in favour of constituting a high-level advisory board to advice the

executive has been suggested by many a jurists. The 35th Law commission report
disagreed the suggestion pointing that the President already has the avenue to consult
with the Attorney-General. Many queries have been raised instantly that how could
arbitrariness and polity partisanship in the exercise of the pardoning power of the
executive be reduced? Whether handing over the power to the judiciary would really
achieve the object behind Articles 72 and 161 of the Constitution? Many issues have
been noted in this study on the pardoning power and the complicated relationship
between the judiciary and the executive.477 The process of clemency proceedings are
not in a satisfactory manner being imbibed with delayed exercise, speedy rejection of
mercy in certain cases,478 failure to interfere timely in some cases479 and quashing the

476
41st Law commission Report, September, 1969.p.249.
477
Devender Pal Singh Bhullar V. State of N.C.T of Delhi, (2002) 5 SCC 234.
478
Kehar Singh, Dhananjoy Chatterjee and Afzal Guru.
479
Ibid.

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impugned order of the Governor of a State480 are completely contradictory to one and
another. Now the question arises why such a power should be retained in the hands of
the executive? In a foreign Article, David Caruso and Nicholas Crawford argues that
the powers of the ‘Institution of Mercy’ (IOM) should not be vested in the executive.
The executive is not the appropriate arm of government or authority to be responsible
for the IOM.481

The Court’s judgment on the subject matter of the pardoning power of the
executive does not give any solution instead it has further compounded. The reluctance
of the Court has been extended by this case. Inordinate and unexplained delay to
dispose the mercy petitions was settled by the Supreme Court in Shatrughan Chauhan
case. As the theory was inherited from the Common law of England and the United
States of America, the assumption has been general that it is an early English tradition
which has remained unmodified. Moreover, there is no proper explanation for retaining
this power of pardon without relieving the fear of partisanship in the hands of the
executive.

The exercise of the pardoning power of the executive for whatever purpose is
undoubtedly open to grave abuse. The exercise of this power needs a redefinition
guided by strict norms. The comment that the judicial review will take over all
controversies as to the improper exercise of the pardoning power is without merit in
that not all such acts of aberrations may be subjected to judicial scrutiny.

Very nature of the pardoning power is illogical

The power to pardon conferred on the constitutional executive is to check the

judicial miscarriage482 and undue harshness shown in the award of punishment. One is
where the judgment in a criminal case is lead by miscarriage of justice and another is
by undue harshness in the punishment. It remains as the basic principles behind the

480
Swaran Singh v. State of U.P. (AIR 1998 SC 2026), Satpal v. State of Haryana, (AIR 2000 SC
1702), Epuru Sudhakarv. State of A.P, (AIR 2006 SC 3385).
481
David Caruso and Nicholas Crawford, The Executive Institution of Mercy In Australia: The Case
And Model for Reform, UNSW Law journal, volume 37(1), 2014.
482
David Caruso and Nicholas Crawford, The Executive Institution of Mercy In Australia: The Case
And Model For Reform, UNSW Law journal, volume 37(1), 2014, John Adams, the second
President of the United States of America expressed this as a system of checks and balances: The
dignity and stability of government in all its branches, the morals of the people, and every blessing
of society depend so much upon an upright and skilful administration of justice, that the judicial
power ought to be distinct from both the legislative and executive, and independent upon both, that
so it may be a check upon both, as both should be checks upon it.

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exercise of the pardoning power under Articles 72 and 161 of the Constitution. The
constitutional authority has been conferred with this power to balance the errors if any
committed by judiciary. But when the very salient power is put to misuse such orders
are again brought back before the judiciary for review which is nothing but an anomaly.

The principle of Separation of powers is provided in the Constitution with

checks and balances. The Constitutional authorities are expected to serve keeping in
mind safeguarding the public interest while exercising their powers and taking
decisions. There is a gentle relationship between the three organs of the State. Any
change in the existing principle of Separation of powers will definitely weaken the
prevailing system. The Law Commission of India recommended the British model in
wherein the power of clemency was retained with the judiciary. The position need to be
analysed in the spirit of the constitutional scheme to bring in any reform. Even though
the pardoning power has survived through the ages, its scope is limited by modern
political philosophy, such as the doctrine of Separation of powers and the supremacy of
the Constitution. By exhibition of arbitrariness and partisanship in the exercise of the
pardoning power, the power as to judicial clemency has resulted the pervert use of
turning the criminal justice system a mockery. The executive’s pardoning power is no
substitute for judicial justice. It is an administrative policy. The criteria for clemency
are more humanitarian and based on public good aimed at rehabilitation. Analysing the
substantive merit, the pardoning power is ideal to be left with the executive rather than
allowing the judiciary to exercise. For all good reasons, let the pardoning power vest
with the executive.

Governor is the person who most abused the pardoning power

An analysis of the constitutional scheme, the objective behind the provisions

and the mode of exercise of this power in India since it is insufficient reveals its abuse
when exercised at the level of the governor of a state. The pardoning power are tend to
be abused for reasons of poor understanding of the principles, ignorance in the very
exercise of this power and many a times influenced by political affiliations. The catena
of instances where the orders for pardon quashed by the Supreme Court though on the
reason of non-placement of proper materials the reality is that judiciary has been
magnanimous by its restraint. It is appropriate to mention that in the previous format of
the legislation the Government of India Act, 1935, no such power had been extended to
the governor. In the Constituent Assembly Debates Dr.Ambedkar, justified the the

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reason of vesting such a power on the Governor of a State on the ground that they are
well aware of their locality, on the perusal they can easily decide the mercy petition
with proper application of mind. Being well aware of their locality leads them to
improper exercise and political partisanship when granting or rejecting the mercy
petitions. The Governor’s orders were quashed by the Supreme Court in certain cases
where the authorities do not provided relevant materials for proper disposal of such
mercy petition before the Governor. But these types of exercise were not raised in the
disposal of mercy petitions by the President. When the very post of the Governors has
become more political and much ornamental political partisanship and other affiliations
cannot be ruled out. The political consideration in the exercise of the pardoning power
in the hands of Governors has become vulnerable. Historically, there was no relevant
background to vest such a power with the Governor. It may be an ideal suggestion
either to abrogate the constitutional power with the governor or design a mechanism
whereby the fair exercise of this power by the office can be ensured.

This study has made a comparative discussion on limited countries wherein the
pardoning power has been exercised by authorities. In America, there were grave
abuses made and many steps have been taken to minimise the political abuse in the
exercise of the pardoning power. The Congress established a commission to reform the
sentencing policy and to promote the mandatory sentencing scheme. During Barrack
Obama’s period, greater policy i.e., smart on crime was introduced. The effective steps
taken have brought in a major check towards fair exercise of the pardoning power.

The Canadian model of pardon system exhibits the establishment of the

national parole board to assist and screen applications for pardon. Especially, there is
no abuse of pardoning power in Canada. In Canada, the pardon is granted by the
National Parole Board of Canada by a screening process. When making application for
pardon, they must complete 3-10 year imprisonment upon the severity nature of their
crime. The pardon process takes only 3-12 months. The pardoning process starts with
the requirement of the database from the Royal Canadian Mounted Police. The pardon
may not be granted where a person commits murder or sentenced to life imprisonment.
Revocation of pardon also exists in Canada. The time-bound process intends to
eradicate recidivism in a well-planned society and aims at successful rehabilitation.

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SUGGESTIONS

The pardoning power is an attitude of the executives to tender mercy without

tamper of justice. It is intended to make supplement the inadequacies and correct
imperfections in the administration of justice.

To meet out the perfection in the exercise of the pardoning power, it is essential
that the power designed is exercised by right persons assigned to the post. The
constitutional structure does not enable accountability for actions taken within the
ambit of these powers. In such circumstances, in the given situation, the following are
submitted as suggestions:-

i) The procedure for electing members to the office of the President needs
reform.
ii) The political nexus in the appointment of Governors is to be avoided.
iii) When petitions for pardon are entertained all relevant details need to be
placed before the authority for perusal.
iv) The role of MHA need to be minimized and possibly be supplemented by an
independent and competent legal wing.
v) The establishment of Presidential pardon board to aid and assist the
executive may be considered. The board may consist of retired judges of the
Supreme Court and the High Courts, apart from that it may contain one
member from SC/STs, one member must be a woman from social work.
vi) A specific time-frame can be laid for the disposal of petitions seeking
pardon.
vii) Decisions taken must be supported by reasons. In the absence of the
requirement to give reasons for such a decision, it is impossible to know
what weighed the President in commuting the sentence. If such a decision is
made public, it definitely helps to know the factors behind the rejection or
grant of pardon.
viii) Any decision taken by the executive must be made accessible to the public
more specifically to the victims.
ix) Presently, the pardoning power is exercisable concurrent both before the
President and the Governor. Rejection of a claim does not forbid placing the
same yet another petition before the President and not the vice-versa. To

258
 avoid possible abuse any decision as to grant of pardon ought to be placed
before the President for confirmation.
x) The order for grant of pardon has been quashed when subjected to scrutiny
by the Supreme Court. It is pertinent that the Law Commission either on suo
moto or on the suggestion of the government takes up a study to re-examine
the continuance and exercise of power of pardon by the office of the
Governor.

259