II

Genetical Outlines of
Pardoning Power

1. Prelude:
In our social fabric each and every power is exercised by or in the
name of the head of the State. This fact is equally applicable to the past
and the present world. But these powers exercised by the head of a State
did not emerge suddenly. All these powers grew with the society. Initially
the prime source of these powers had been the family. The head of every
family enjoys lot of powers even today and some of these powers can be
termed as extraordinary in a sense that it is only the head of the family who
can take a decision on behalf of the family in certain specific matters.
Similarly the power to grant pardon which is one of the most important
powers of the sovereign necessarily originated from the family. In the
family whenever a wrong is committed by a member, he may obtain
pardon from the head of the family. Especially in the ancient times the
head of the family was very powerful than the other members of the family.
With the growth of the society in the later stage when the king or
some head appeared he enjoyed the powers being the sovereign of the
State. He became the source of law that time. He exercised absolute
powers including the power to grant pardon. Earlier these powers were
exercised under the divine inspiration by the sovereign wherever the
sovereignty might lie. Whether the sovereign happened to be an absolute
monarch or a public or constitutional king or queen sovereignty has always

24
been associated with the source of power. The powers that were exercised
under the divine inspiration during earlier period of time, later it became a
law and appeared in the law books. Similarly the power to grant pardon is
also a result of this process. In this Chapter the researcher in order to find
out the genetical outlines of pardoning power, found it necessary to
discuss the meaning, types, origin and development of this power.
2. Meaning of Pardon:
A pardon is the forgiveness of a crime and the penalty associated
with it. It is granted by a sovereign power, such as a monarch or chief of
the State or a competent church authority.^ It has also been prescribed as:
the act of the highest authority in the government
who rules the law and has the power to forgive someone who
has committed crime or has been convicted of the crime,
thereby restoring the rights of that person and releasing
him/her of the present sentence. Normally President of the
country being head has such powers to grant pardon and
once such pardon is granted the sentence is removed from
the books as if it has never occurred. Depending on the
condition of thai, the behaviour of the convict, the age, are
some factors taken into consideration when deciding on
granting of the pardon by the President.^

As per Britannica Encyclopedia the term pardon means:

in law, release from guilt or remission of punishment.
In criminal law the power of pardon is generally exercised by
the chief executive officer of the state. Pardons may also be
granted by a legislative body, often through an act of
indemnity, anticipatory or retrospective, for things done in the
public interest that are illegal^

Basically this term originated from a Medieval Latin term "perdonare"

1. Available at: http://en.wikipeclia.ora/wiki/Pardon. (Visited on May 07, 2011).

2. Available at: http://www.legal-explanations.com/definitions/pardon.htm. (Visited
on May 07. 2011).
3. The New Encyclopedia Britannica, Vol. - 9, (Encyclopedia Britannica Inc.,
Chicago, 15"^ edn., 2002), "pardon", also available at: http://www.britannica.com/
EBchecked/topic/443418/pardon. (Visited on May 07, 2011).

25
which meant to remit or completely free from punishment. This term
"perdonare" constituted up of two words i.e. 'pei" and 'donare'. 'Per' means
completely and 'donare' means to give."^ Therefore according to this term
"perdonare" whenever a person is found guilty of an offence he can be set
completely free form any kind of punishment that may be imposed for that
offence. The term pardon in Microsoft Encarta Encyclopedia is concisely
elaborated as under:
"Pardon, in law, act by which an individual or class of
individuals is freed from the consequences of having
committed a breach of the law. A pardon may be granted
either before or after conviction for a crime. It cannot,
however, apply retroactively to allow one who paid a fine to
recover the same, or to allow one who has served a term of
imprisonment to obtain compensation for such imprisonment.
However, a one-off ex gratia payment may be made by the
authority. A pardon may be absolute or conditional. Any
condition may be imposed provided it is not impossible, illegal,
or immoral. A full pardon brings about a remission of the
punishment and generally removes any legal bars or
disqualification that would have applied to a convicted
person.

Therefore, it can be concluded that when a person is found guilty of

commission of an offence, he may be set free to live in the society as if he
never committed any offence. But it can happen only when he receives a
pardon from the sovereign. There are two effects of pardon. Firstly the
pardon completely exonerates an offender from the punishment imposed
on him by the court of law. Secondly, it also absolves him from the stigma
attached to the sentence or conviction. In other word the person pardoned
can live in the society in a manner as if he never committed any offences.
He will be entitled for all personal rights like that of normal human beings.

4. New Oxford Advanced Learner's Dictionary (CD), (Oxford University Press, New
Delhi, 2005) "Pardon".
5. Microsoft® Encarta® 2006 [CD]. (IVIicrosoft Corporation, 2005) "Pardon".

26
 In India, this power to grant pardon is contained in the Constitution^
and five different statutes dealing with the armed forces of India/ The
Constitution confers this power on the President® and the Governor^ and
laws of armed forces confer the power to grant pardon on the officers of
the armed forces/^
3. Pardon and Amnesty:
Pardon and amnesty are the two words which were used
interchangeably for each other so many times although both of them are
altogether different. While distinguishing between these two words Basu
observed that:
The pardoning power should be distinguished from 'amnesty'.
While a pardon remits the punishment imposed by a court
upon an offender, amnesty overlooks the offence and
absolves the offender from penalty. While pardon is
addressed to ordinary crimes, or infractions of the peace of
the State, amnesty is generally confined to 'political offences'
or offences against the sovereignty of the State, and is
exercised in favour of classes or group of people. (Burdick v.
U. S., (1915) 286 US 79) In short amnesty is in nature of
forgiveness offered in advance of trial, to a group of people
who have engaged in rebellion or like offences against the
State itself.^^

Therefore, amnesty is a wider and bigger power then pardon.

Amnesty starts before trial where as the pardon can operate only after
punishment. As per Wikipedia Encyclopedia:
Amnesty is a legislative or executive act by which a

6. The Constitution of India, 1950, Arts. 72 and 161.

7. Army Act, 1950 (46 of 1950), Section 179, Air Force Act, 1950 (45 of 1950), Navy
Act, 1957 (62 of 1957), National Security Guard Act, 1986 (47 of 1986), Indo-
Tibetan Border Police Force Act, 1992 (Act 35 of 1992).
8. Supra note 6 Art. 72.
9. / d . Art. 161.
10. See, infra Chapter IV.
11. D.D. Basu, Commentary on the Constitution of India 4455 (Lexis Nexis
Buttenrt/orths Wadhwa, Nagpur, 8'" edn., 2009).

27
 state restores those who may have been guilty of an offense
against it to the positions of innocent people. It includes more
than pardon, in as much as it obliterates all legal
remembrance of the offense.^^

Therefore, Pardon and amnesty are not the same. A pardon is

granted to one who is certainly guilty but in case of amnesty it is not
compulsory that all those persons whom amnesty is granted are guilty of
an offence. They may have committed the offences against the State. The
act of amnesty is abolition or oblivious of the offence and pardon is
forgiveness.^"^
The word "amnesty" properly belongs to international law and is
applied to treaties of peace following a state of war and signifies there the
burial in oblivion of the particular cause of the strife, so that shall not be
again a cause of war between parties. And so amnesty is applied to
rebellions which by their magnitude are brought within the rules of
international laws in which magnitudes of men are subjects of clemency of
iA
the Government.
In India, the Supreme Court does have the same opinion with regard
to these two terms. While distinguishing these two terms the Court
observed that:
Pardon is to be distinguished from "amnesty" which is
defined as general pardon of political prisoners; an act of
oblivion". As understood in common parlance, the word
amnesty is appropriate only where political prisoners are
released and not in cases where those who have committed
felonies and murders are pardoned.^^

Pardon and amnesty are in fact two different powers that can be
exercised in totally different situations. In case of pardon a person who

12. Available at: http://en.wikipeclia.org/wiki/amnestv, (Visited on May 07, 2011).

13. P. Ramanatha lyar, Advanced Law Lexicon 243 (Lexis Nexis Buttenrt/orths
Wadhwa, Nagpur 3"^ edn., 2007).
14. Knote v. US, 95 US 149.
15. State (Government of NCT of Delhi) v. Prem Raj, 2003 SCC (Cri.) 1586 at 1590.

28
committed a crime is absolved from punishment whereas in case of
amnesty the guilty persons are exonerated from trial and the sentence as
well.
4. Pardon and some other kinds of similar powers:
The power to grant pardon which is an extra ordinary power is not
the only power that can be exercised in case of the prisoners. There are
certainly other similar powers that may be exercised for providing relief to
the prisoners. These powers are also the acts of pardon, mercy or
clemency but their effects are different. These other similar powers are
discussed hereunder:
A. Reprieve:
Reprieve means stay of execution for a temporary period of time,^^
or a postponement of capital sentence passed by a court of law or to take
back or withdraw a sentence for a time,^^ for example, where the petition
for pardon or commutation is pending before the competent authority, an
order of reprieve can be passed. This order temporarily suspends the
execution of sentence till the final disposal of the proceedings. In the words
of Jo Witt:
A reprieve is the witlidrawal of sentences for a time
wliereby the execution of it is postponed. It may be granted
either by the court or by the Crown. It may take place ex
mandato regis, at the mere pleasure of the Crown, or ex
arbitrio judicis either before or after judgment as where the
judge is not satisfied with the verdict or the indictment is
insufficient or any favourable circumstances appear in the
criminal's character, in order to give time to the Crown for
either an absolute or a conditional pardon; or ex necessitate
leg is as where a criminal becomes non compos
The Crown can, ofcourse, reprieve as well as pardon or
commute.^^

16. Carlesisj. N. Y., (1914) 233 US 51.

17. State (Government of NCT of Delhi), supra note 15 at 1593.
18. Jowitt, The Dictionary of English Law 1530 (Sweet & Maxwell, London, 1981),
also available at: https://www.alibris.com, (Visited on May 07, 2011).

29
 Jowitt also called the power to grant reprieve as a means to enforce
a stay on the execution of the sentence passed by the court of law. Even
as per the Microsoft Encarta:
...the reprieve, in criminal law is nothing but the temporary
suspension of a sentence such as a stay of execution (in
countries that have retained the death penalty) granted to a
person convicted of a capital crime. A reprieve is usually
granted by the sovereign or chief executive; in some cases it
may be granted by the court that tried the offender.^^

The term 'reprieve' has been derived from the French word
'reprendre' which means to keep back and signifies the withdrawing of a
20

sentence for an interval of a time and operate in delay of execution. In

other words "a reprieve signifies the suspension for a time of the execution
of a sentence which has been pronounced; it is withdrawing of a sentence
for an interval of time and the word is from 'reprendre' meaning to take
back."^^ In England, the Crown, in order to re-investigate into the matter,
may exercise the prerogative right of granting a reprieve, which is effected
by announcing its pleasure in any way to the Court and may also remit the
penalties in certain-cases.^^ The position of this power in United State is
also the same. The President of United States possess the power to grant
reprieve for the same purpose and he can exercise it in all cases where he
23
deems it fit.
Therefore, it can be concluded that reprieve can be granted to a
condemned prisoner who has applied for mercy. The order of reprieve
remains in force till the final disposal of the mercy petition. Even the

19. Microsoft® Encarta®, supra note 5 "Reprieve".

20. American Jurisprudence 2d, Vol. 59 (West Group, A Thomas Company,
2002) para 4; see also Joseph Chitty, A Practical Treatise on Criminal Law 757
(ISAAC Riley, No. 8, Decature Street, Plniladelphia, 2"" edn.).
21. P. Ramanatha lyar, supra note 13 at 4076
22. Halsbury's Laws of England, Vol. - 8(2) (Butterworth and Co. Publishers Ltd.,
London, 4'^ edn. 1996) para 828.
23. The United States Constitution, Art. II, s. 2 (i).

30
principle of natural justice demands that till the pendency of the mercy
petition the sentence must not be executed. The basic purpose of the
reprieve is generally to allow an investigation into the legality of the
conviction or into alleged newly discovered evidence in favour of the
convicted person. A reprieve delays an execution, unlike a pardon, it does
not negate a sentence unless the re-investigation shows that the prisoner
has been unjustly tried or sentenced.
B. Respite:
As per the Oxford Dictionary respite means "relief from something
difficult or unpleasant" or "a delay or postponement" or "a period of
temporary delay." Thus according to the literal meaning respite means
providing relief by postponement of punishment of a person who cannot be
punished under some special circumstances or grounds at that particular
point of time. For example the postponement of death sentence of an in
sane person or the postponement of death sentence of a pregnant women.
In case of pregnancy respite will definitely be granted as a matter of right
because it is in fact a question of life of an unborn child as well who is in
the mother's womb.
Just like reprieve the respite is also a temporary relief. The order of
respite operates only till the special reason exists. Although the authority
who ordered a respite may later order for permanent remission or
commutation of sentence but in absence of the same the offender will have
to face the original sentence passed by the court of law, after the reason
for grant of respite ceases to exist.

24. Oxford Dictionary Tliesaurus and Wordpower Guide, (Oxford University Press,
New Delhi, 2001) "respite".
25. Available at: http://dictionarv.reference.com/browse/respite. (Visited on May 07,
2011).
26. Available at: http://www.merriam-webster.com/dictionarv/respite, (Visited on May
07,2011).

31
C. Commute:
To commute a sentence is basically an act of lessening of the
sentence given to any offender on the basis of health, behaviour or any
other ground. It is given by the executive head of the state like the
President or the Governor. It is distinguished from being pardoned where
the accused is released from punishment completely.
Basically this term commutation originated from a Latin term
"commutare" which means exchange or interchange. This term
"commutare" is constituted up of two terms i.e. 'com' and 'mutare'. 'Com'
28
means altogether and 'mutare' means to change. Therefore commutation
can be defined as a replacement of one punishment with another
punishment.
According to the Encyclopedia of Wikipedia:
"commutation means the reduction of legal penalties,
especially in terms of imprisonment. Unlike a pardon, a
commutation does not nullify the conviction and is often
29
conditional.'
Therefore, it can be concluded that meaning of the term
commutation of a sentence is simply the replacement of a sentence into a
less sever sentence. For example rigorous imprisonment of the offender is
commuted to simple imprisonment or death sentence commuted to life
imprisonment.
D. Remission:
Remission, as per the Oxford Dictionary, means "forgiveness of sin"
30

or "the reduction of a prison sentence as a reward for good behavior."

This word remission originated from a Latin term "remittere" which means

27. Available at: http://www.legal-explanations.com/definitions/commutation.htm,

(Visited on May 07, 2011).
28. Microsoft® Encarta®, supra note 5 "Commute."
29. Available at: http://en.wiklpedia.orq/wiki/Commutation of sentence, (Visited on
May 07, 2011).
30. Oxford Dictionary Thesaurus and Wordpower Guide, supra note 24 "remission".

32
'send back' or 'restore.' This Latin term is constituted up of two words i.e.
're' and 'mittere'. 'Re' means 'back' and 'mittere' means send.^^ Therefore
as per its origin the term remission means sending back or restoring a
person once again in the society who is otherwise guilty of commission of
an offence and deserves to serve complete punishment.
Thus it can be said that remission is a premature release of the
convict form the prison. For example if a person has been punished for 5
years imprisonment he may be released from the prison earlier if remission
is granted to him. He may be released after the completion of 3 years of 4
years as the order of remission prescribes. But a remission of sentence
never interferes with the judgment of the court.
E. Pardon to Accomplice:
An accomplice is a person who actively participates in the
commission of a crime, even though they take no part in the actual criminal
offense.^^ This term 'accomplice, has also been defined in the following
words:
One who knowingly, voluntarily, and with common intent
unites with the principal offender in the commission of a crime.
One who is in some way concerned or associated in
commission of crime; partaker of guilt; one who aids or
assists, or is an Accessory. One who is guilty of complicity in
crime charged, either by being present and aiding or abetting
in it, or having advised and encouraged it, though absent from
place when it was committed, though mere presence,
acquiescence, or silence, in the absence of a duty to act, is
not enough, no matter how reprehensible it may be, to
constitute one an accomplice. One is liable as an accomplice
to the crime of another if he or she gave assistance or
encouragement or failed to perform a legal duty to prevent it
with the intent thereby to promote or facilitate commission of
33
the cnme.

31. Available at: http://en. wikipedia.oraAA/iki/Remission. (Visited on May 07, 2011).

32. Available at: http.//en.wikipeclia.org/wiki/Accomplice. (Visited on May 07, 2011).
33. Available at: http;//www.legai-explanations.com/definitions/accomplice.htm.
(Visited on May 07, 2011).

33
 Therefore an accomplice is a person who participates in the
commission of crime in some or the other way. For example, in a banl<
robbery, the person who points the gun at the teller and asks for the
money is guilty of armed robbery. However, anyone else directly involved
in the commission of the crime, such as the lookout or the getaway car
driver, is an accomplice, even though in the absence of an underlying
offense keeping a lookout or driving a car would not be an offense.
Such a person known as accomplice may also receive pardon. In
case there is no sufficient evidence of the commission of crime or it is not
possible to prove the case against the offenders and in such a case one of
the accomplice is willing to become an approver then the conviction can be
based on the statement of such an accomplice. In such type of case the
court can grant pardon to such an accomplice.
In India as well the law of pardon to an accomplice is also the same.
The court can exercise this power under the Code of Criminal Procedure.
But only that person can become an approver who is less guilty in the
commission of crime, in comparison to the other offenders. Such a person
appears as a witness before the court of law. If he sticks to his statement
35
then the court may grant pardon to such an accomplice.
Therefore it can be concluded that the power of pardon can also be
exercised for nailing the truth and punishing the guilty persons. It is
basically a sort of agreement between the accomplice and the court. If
accomplice makes a statement against himself and the main accused, the
court in consideration grants pardon to him
F. Probation:
A person found guilty of commission of an offence may instead of
punishment be released on probation by the court of law. The law of
probation and the main reason behind the release of the convict has been

34. The Code of Criminal Procedure, 1973 (Act II of 1974), ss. 306-08.
35. See, infra Chapter IV.
34
explained by the United Nations, Department of Social Affairs, in the
following words:
The release of the offenders on probation is a treatment
device prescribed by the court for the persons convicted of
offences against the law, during which the probationer lives in
the community and regulates his own life under conditions
imposed by the court or other constituted authority, and is
subject to the supervision by a probation officer The suspens-
ion of sentence under probation serves the dual purpose of
deterrence and reformation. It provides necessary help and
guidance to the probationer in his rehabilitation and at the
same time the threat of being subjected to unexhausted
sentence acts as a sufficient deterrent to keep him away from
criminality. The United Nations recommends the adoption and
extension of the probation system by all the countries as a
major instrument of policy in the field of prevention of crime
and the treatment of the offenders.

Hence as per this observation, a convicted person may also be

permitted to live peacefully in the society and to change his behaviour. But
he remains under the supervision of a probation officer. The law of
probation in India is also working on the same principle.'^'^ It provides for
the release of certain specific first offenders by the court of law on
probation. During probation he lives in the society under the probation
officer. If during the period of probation he commits any offence then he is
brought back to the prison for serving the original sentence.^^
Therefore it can be concluded that probation is a sort of sentence
whereby a convict is released from confinement but is still under court
supervision. It may be termed as a testing or a trial period. Probation can
be given in lieu of a prison term or can suspend a prison sentence if the
convict has consistently demonstrated good behavior.

36. United Nations Department of Social Affairs, Probation and related measures,
(New York, 1951) at 7.
37. K.L. Sethi, Commentary on The Probation of Offenders Act, 1958 3 (Unique Law
Publication, Jodhpur, 3"^ edn., 2006).
38. See, infra chapter IV.
35
G. Parole:
Parole is the early release of a prisoner who after release from
prison on parole remains subject to continued monitoring as well as
compliance with certain terms and conditions for a specified period. It has
also been defined in the following words:
The conditional release of a person convicted of a crime
prior to the expiration of that person's term of imprisonment,
subject to both the supervision of the correctional authorities
during the remainder of the term and a resumption of the
impnsonment upon violation of the conditions imposed

Therefore the law of parole operates in cases of certain prisoners

released from jail before the expiry of the sentence passed by the court of
law. Such prisoners are permitted to live in the society. They are subject to
the supervision of some authority during the period parole. Even in India
the law of parole is same as well.
Parole must be distinguished from probation. Parole is granted to
the prisoners who already have undergone some part of the sentence
whereas in case of probation the person is released immediately without
sending him to jail. The power to release on parole can be exercised by
the executives whereas the probation is the subject matter of the court of
law.
Therefore, Parole is a legal sanction that lets a prisoner leave the
prison on the condition that s/he will behave properly after release. In case
of violation of parole conditions the offender is brought back to serve the
remaining punishment.
5. Authorities Competent to exercise the Pardoning Power:
The power of pardon that may exonerate a person completely from
the guilt, generally lies in the highest authority of a State. Even the Apex
Court of India while dealing with pardoning power expressed the same

39. Available at: http://legal-dictionarv.thefreedictionarv. com/ parole. (Visited on May

07,2011).

36
view in the following words:
"Pardon is one of the many prerogatives wtiicli tiave
been recognized since time immemorial as being vested in the
sovereign, wherever might lie. Whether the sovereign
happened to be an absolute monarch or a popular republic or
a constitutional king or queen, Sovereignty has always
been associated with the source of power— the power to
appoint or dismiss public servants, the power to declare war
and conclude peace, the power to legislate and the power to
adjudicate upon all kinds of disputes''^^

As a matter of fact all civilised countries make use of some form of

the pardoning power to give flexibility to the administration of justice in
criminal cases and this power to grant pardon is conferred on the head of
the state. In England this power historically is vested in the Crown. In
United States it is the President who exercises this power. Similarly in
other countries the power to grant pardon is vested in the highest
authority e.g. the power is given to Governor-General in New Zealand,'*'* to
the Presidents of France,'*^ South Africa,'*^ Pakistan,'*^ Sri Lanka'*® and to

40. K. M. Nanawati vs. State of Bombay, AIR 1961 SC 112 at 180.

41. Austin W. Scott, Jr., "The Pardoning Power", 284 AAAPASS, 95 (Nov., 1952).
42. Royal Prerogative; It is to be exercised on the advice of Home Secretary. The
mercy power of the sovereign has been a creation of common law.
43. The United States Constitution, supra note 23 Art. II, s. 2(i).
44. Royal Prerogative, Letters Patent, 1917, Clause 8, and Royal Instructions,
Clause 7; Crimes Act, 1961, ss. 406 and 407, This power is to be exercised by
the Governor-General in the name of and on behalf of Crown.
45. The power of pardon has been vested in the President by Art. 17 of The
Constitution of France, which reads as follows: "The President of the Republic
shall have the right of pardon."
46. The power of pardon has been vested in the President by Section 84(2) ( j ) of
The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), which
reads as follows : "The President is responsible for pardoning or
reprieving offenders and remitting any fines, penalties or forfeitures...
47. The power of pardon has been vested in the President by Art. 45. The
Constitution of Islamic Republic of Pakistan, 1973 which reads as follows: "The
President shall have power to grant pardon, reprieve and respite, and to remit,
suspend or commute any sentence passed by any court, tribunal or other
authority.
48. The power of pardon has been vested in the President by Art. 34 of The
Constitution of Democratic Socialist Republic of Sri Lanka, 1978.

37
the Standing Committee of National People's Congress of China"*® and so
on.
The position of the pardoning power in India is also the same. Here
the power is vested in the People, who can delegate the power to
whomever they please. As a matter of practice, the People have found it
most convenient to give the power to the executive branch of the
government. Hence, under the Constitution of India the pardon power can
be exercised by the President^° and the Governor of a State concerned.^^
Therefore it can be concluded that the power to grant pardon can be
exercised by the executives being the sovereign.
Therefore, it can be concluded that the power to grant pardon has
been conferred on the head of the state. The basic reason behind
conferring this power on the head of the state is that this power to grant
pardon is to be exercised in cases where the highest judiciary decides to
punish a person. Therefore logically it is conferred on the head of the state.
The head of the state can exercise this power in all cases where he may
deem fit. Instead of granting pardon he may also pass some other orders
that are shorter than a full pardon. For example, the orders of reprieve,
respite, commutation or remission.
The other authority that may exercise the power to grant pardon is
the court. It is only the court who possesses the power to decide that
whether a first offender is to be released on probation or not? This power
has rightly been conferred on the court itself because it is the court who
may exercise this power very easily and efficiently. The offender first of all
interacts with the court itself and if the court finds the possibility of change

49. The power of pardon has been vested in the Standing Committee of National
People's Congress of China by Art. 67 (17) of The Constitution Peoples Republic
of China, which reads as follows: "The Standing Committee of the National
People's Congress exercises the following functions and powers: To
decide on the granting of special pardons."
50. The Constitution of India, supra note 6 Art. 72.
51. /cf., Art. 161.

38
in the offender then it can opt for release of the offender. Even in India as
well, the power to release the offender on probation is conferred on the
court itself. Besides this the Courts are also empowered to exercise the
power to grant pardon to accomplice as well. Thus the Court enjoys the
power to grant pardon in two cases i.e. the grant of pardon to an
accomplice and the release of an offender on probation.
6. Abuse and Misuse of the Pardoning Power: Some common
causes:

The possibilities of the abuse and misuse of power are inherent in

the pardon power. Since the power to grant pardon is of great
importance therefore the possibilities of misuse of the same are high as
well. The common causes of misuse of the power are as under:
A. Political Influence:
The political influence is the major factor behind the abuse or misuse
of the pardon power. The major example of the same lies in the United
States which is the most criticised and objected pardon of the former
President Richard Nixon^^ as it represented the ultimate cover up of the
'Watergate Scandle."^^ The main reason behind the criticism was that the
order prevented the operation of the investigator and judicial system from
obtaining the truth with regard to the involvement of Richard Nixon in
Watergate Scandle.^^
At times the Executive may exercise the power of pardon on
grounds as political vendetta or party favouratism that may make the
actual exercise of the power of pardon vulnerable. Justice Shankaran of

52. P.J. Dhan, "Justiciability of the President's Pardon Power", 26(3&4) IBR 75
(1999).
53. See, infra head note Development of pardoning power in United States.
54. Mondale, F. Walter, "Harnessing The President's Pardon Power", 4(1-4) JBCI
135(1975).
55. Aavailable at: http://en.wikipedia. orq/wikiA/Vatergate scandal, (Visited on May
07,2011).

39
Kerala High Court referred to successive (State) Governments exercising
the power of pardon which according to him, tantamount to "legalised
discrimination." Such a situation may create a feeling among the
followers of a political party that they can easily get pardon and remission
when their party comes into power. In fact, granting of pardon in such type
of politically motivated cases destroys the deterrent effect of the
punishment as well. Even the Supreme Court of our country took a serious
note of the misuse and abuse of the pardoning power and in a recent
judgment the court observed that:
An undue exercise of this power is to be deplored.
Consideration of religion, caste or political loyalty are
irrelevant and fraught with discrimination. These are prohibited
grounds. The supreme quality of the Rule of Law is fairness
and legal certainty. The principle of legality occupies a central
plan in the Rule of Law. Every prerogative has to be subject to
the Rule of Law. That rule cannot be compromised on the
ground of political expediency.^^

Therefore it is clear from the above discussion that the power to

grant pardon can be misused by the executives for the political purposes
and thereby the cardinal principle of rule of law suffers a big blow.
B. Economic Reasons:
When the entire world is suffering from the problem of bribe in each
and every field then how the power to grant pardon can remain untouched.
The rich persons who commit a crime may influence the decisions of
executives. The major example of such an influence lies in United States.
In the year 1993 George Herbert Walker Bush pardoned Cox.^^ Eleven
months after the pardon, oil magnate Edwin Cox the father of Cox

56. V.D. Mahajan, Constitutional Law of India 492 (Eastern Book Company,
Lacknow, 1991).
57. Epuru Sudhakars/. Government ofAndhra Pradesh, AIR 2006 SC 3385 at 3402.
58. United States Department of Justice, Pardons and Commutations Granted by
President George H. W. Bush, available at: http://www.usdoi.gov/pardon/
bushgrants.htm, (Visited on May 07, 2011).

40
pardoned by Bush, donated a huge amount to the Presidential library.^^
Therefore, it is quite clear that the power to grant pardon can be
misused or abused by the authority and money may play great role in
granting pardon to the convict.
C. Status of Victim:
Status of victim may also become a cause for the misuse or abuse
of the power to grant pardon. If the convict committed the crime against
some strong and well established person then it will be quite difficult for
him to obtain a pardon. A few thinkers quote the example of the
assignation of Mrs. Indira Gandhi. In this case one of the convict was of 21
en

years of age. It has been alleged that although the young age is one of
the grounds on which the President of India may exercise the power to
grant pardon under Article 72 of the Constitution of India,®^ but in this case
the young age of the convict was not taken into consideration while
deciding his mercy petition.®^ But the researcher does not agree with this
view because a protector can never be expected to do such type of a
crime. The allegation could have been true if in place of bodyguards it
were the normal human beings.
The victim may play a great role. It is not possible to rule out
completely the influence of the status of the family of the victim. For
example if a person kills the ward of a Prime Minister of a country then he
can never expect for mercy in that case from the same government. The
family or friends of victim, in order to make it sure that the offender shall be
punished, will definitely take care of the case in the court of law and the
President's office as well.

59. Presidential Library, a Big Donation, available at: http://www.time.com/ti

me/nation /article. (Visited on May 07, 2011); for details see, infra head note
Development of pardoning power in United States.
60. See, Appendix - 4.
61. See, infra Chapter V.
62. Supra note 60.

41
D. Lack of Accountability:
The power to grant pardon conferred on the head of state is a
discretionary power and generally it is out of the scope of judicial review.^"^
It is a well known fact that the power corrupts and the absolute power
corrupts absolutely. If we will permit a power to run riot then definitely it is
going to cross the limits. Therefore, this lack of accountability is a major
cause of concern. It is because of this nature of pardoning power that
some of Presidents of America abused the power so many times.®^
E. Lacic of Procedure and Guidelines:
The power to grant is suffering a lot because of lack of proper
procedure and the guidelines. In absence of guidelines there are high
chances of misuse and abuse of the pardoning power. Even in our country
no specific statutory guidelines have been framed for the purpose of the
65
exercise of the power under the constitution.
F. Misrepresentation by convict:
It is quite possible that in order to obtain an order of pardon the
convict may misrepresent the facts before the authority. Although the law
provides for the revocation of pardon if found to be based on
misstatements, misinformation or misrepresentations. The presence of
law for punishing the criminals cannot prevent the criminals from making
the misrepresentations as it is inevitable.^'^
G. Role of Media:
In today's world, media has made a very special place for itself in
our lives. Especially it plays a crucial role in shaping a healthy democracy.

63. See, infra Chapter VI.

64. See, infra head note development of pardoning power in United States.
65. See, infra Chapter V.
66. Corpus Juris Secundum, Vol. 67A (St. Paul, Minn., West Publishing Co. U.S.,
1989) para 16; see also American Jurisprudence 2d, supra note 20 para 43;
Epuru Sudfiakarw. Government ofAndfira Pradesti, AIR 2006 SC 3385 at 3398.
67. See, infra Chapter III.

42
It is the backbone of a democracy. Media makes us aware of various
social, political and economical activities happening around the world. It is
like a mirror, which shows us or strives to show us the bare truth and harsh
realities of life.
The only and the obvious problem with the media is that it is not
possible for it to highlight each and everything happening in the society.
The matters brought into the knowledge of public by media may be dealt
with the authorities in accordance with law and the matters that could not
come up in media may not get the same response. Therefore media plays
a great role in a society. It may affect the decision of the authority. The
authority becomes bound to take a proper decision otherwise it will get
exposed by media.
Similarly in case of pardoning power as well it may play a significant
role. As a matter of fact in India it is the media itself who brought forth the
complete report of Afzal Guru who is convicted for the attack on
parliament. People are eager to know the fate his mercy petition. Although
the government is not deciding the mercy petition of Afzal Guru on the
ground that some more matters are already pending before the
President.^® But the government is well aware of the fact that whenever the
decision on the mercy petition will be taken the media will brought the
same before the public, hence government will definitely keep in mind the
rule of law for deciding the petition.
The other example of the role of media in the field of pardoning
69

power is that of Sarabjeet Singh case. Media brought this case in

lime light. It is because of media only that even the human rights activists
also asked the government of Pakistan to look into the matter

68. See, infra Chapter V.

69. Sarabjit was sentenced to death for his alleged involvement in four bomb blasts
in Pakistan in the year 1990 that killed 14 people. He has not been executed as
yet and his mercy petition is pending before the President of Pakistan.

43
afresh^° and Sarabjeet Singh has not been executed till date.
Therefore, it can be concluded media may also play a dominant role
by producing the truth before the public. The authorities will also be afraid
of doing injustice with public because the step taken by it will be produced
before the public by media. Hence the authorities will decide the mercy
petitions only in the public interest at large.
7. Purpose and objective of Pardoning Power:
The power whatsoever it may be shall be exercised by the
authorities keeping in view the public interest. Same is the case of
pardoning power. This power to grant pardon shall also be exercised by
the authorities after taking special care and caution. The authorities are to
see the impact of the exercise of this power on the society. The balance
has to be maintained while exercising the power between the social control
and the interest of the offender and the aggrieved family as well. In every
case the public welfare shall be an important factor that needs attention.
Historically the power to grant pardon became an act of public welfare.
In the Wilson's case^^ which is the very first case concerning the
pardoning power decided by the Supreme Court of United States of
America^^ in the year 1833, the Chief Justice Marshall speaking for the
Court said that:
A pardon is an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed from the punishment the
law inflicts for a crime he has committed. It is the private
though official act of the executive magistrate delivered to the
individual for whose benefit it is intended, and not
communicated officially to the Court A pardon is a deed,
to the validity of which delivery is essential, and delivery is not

70. Burney to file fresh mercy petition for Sarabjit, available at:
http://ibnlive.in.com/news: see also http://www.Duniabnewsline.com, (Visited on
May 07, 2011).
71. United States v. Wilson, (1833) Law Ed. 640.
72. Bernard Schwartz, Constitutional Law: A Textbook 160 (Macmillan Publishing
Co., New York, 1''edn.,1972).

44
 complete without acceptance. It may then be rejected by the
person to whom it is tendered; and if it be rejected, we have
discovered no power in a Court to force it on him^^

As per this judgment Justice Marshall made the pardoning power to

be an act of grace and interestingly he called it to be a deed entered
between the two parties. That means the act of pardon has nothing to do
with the public interest. If the sovereign is willing to grant pardon he is free
to do so. It has been held to be an act of grace. There is only one condition
for the execution of such an order of pardon that is it should be accepted
by the person to whom it has been tendered.
In the year 1926, this view of Chief Justice Marshall was abandoned
by Mr Justice Holmes in the following words:
A pardon is not a private act of grace from an individual
happening to possess power It is part of constitutional
scheme. When granted it is the determination of the ultimate
authority that the public welfare will be better served by
inflicting less than what the judgment fixed.^^

The impact of this judgment was that it made it clear that a pardon is
neither a private act of grace nor a personal favour^^ or but it is granted as
7fi
an act in the interest of the public welfare.
In India the position regarding this question is the same as that in
United States. The Apex Court of India in a latest judgment followed this
view and also used certain words of the judgment of the Supreme Court of
United States and held that:
Pardons, reprieves and remissions are manifestations
of the exercise of prerogative power These are not acts of
grace. They are part of the Constitutional scheme. When a
pardon is granted, it is the determination of the ultimate

73. Wilson, supra note 71 at 643.

74. Biddle v. Perovich, (1927) 274 U. S. 480 : (1926) 71 Law Ed 1161 at 1163.
75. The Supreme Court of United States called the power to grant pardon as a
personal favour in Bearden v. State, (1953) 223 SC 211.
76. Corpus Juris Secundum, supra note 66 para 11.

45
 authority that public welfare will be better sen/ed by inflicting
less than what the judgment has fixed Exercise
of Executive clemency is a matter of discretion and yet subject
to certain standards. It is not a matter of privilege. It is a matter
of performance of official duty. It is vested in the President or
the Governor, as the case may be, not for the benefit of the
convict only, but for the welfare of the people who may insist
on the performance of the duty. This discretion, therefore, has
to be exercised on public consideration alone^^

The Supreme Court also called this power to be a discretionary

power, but not a matter of private grace. The last line of this observation of
Supreme Court quoted above emphatically stresses by using the word
'alone' that the pardoning power shall be exercised only after taking into
consideration the public welfare behind the order of pardon. In this case
the Supreme Court further held that:
the power of executive clemency is not only for the
benefit of the convict, but while exercising such a power the
President or the Governor, as the case may be, has to keep in
mind the effect of his decision on the family of the victims, the
78
society as a whole and the precedent it sets for the future.
Thus the Apex court of India made it clear that the power to grant
pardon shall not be exercised on irrelevant grounds but the sovereign shall
take into consideration the effect of pardon on the family of the victims and
the society as well. Because first of all it is the family of the victim who will
feel aggrieved from the decision and thereafter it will spread a wrong
massage in the society if the pardoning power is being misused.
Besides this the motive or objective of the pardoning power, it serves
a few more purpose. Firstly, the power to grant pardon also aims to bring
back the offender into the main stream of the society. In other words the
sovereign will have to find out the possibility of rehabilitation of the
offender. The logic behind the same can be understood in the following

77. Epuru Sudhakar, supra note 57 at 3401.

78. Id., at 3402.

46
words of George Bernard Shaw:
If you are to punish a man retributively, you must injure
him. If you are to reform him, you must improve him and, men
are not improved by injuries'.^

Therefore, the power to grant pardon can be exercised for the

purpose of improvement of behaviour of the offender by permitting him to
enter into the society once again with a promise of improved behaviour.
This power to grant pardon also plays a great roll especially in cases
of granting pardon to the rebels and permitting them to live in the normal
society. It serves the public purpose in two ways i.e. firstly it makes an end
of the war with the rebels and secondly the rebels get a chance to lead a
peaceful life in the society.
The other goal that is being achieved by the pardoning power is that
it is very useful to correct the possible judicial error.^° This is also quite
possible that the law may sometime be so harsh to punish the person. This
nature or role of pardoning power has been expressed in a very beautiful
language in an American case by Chief Justice Taft in the following words:
Executive clemency exists to afford relief from under
harshness or evident mistake in the operation or the
enforcement of the criminal law. The administration of justice
by the courts is not necessarily always wise or certainly
considerate of circumstances which may properly mitigate
guilt. To afford a remedy, it has always been thought essential
in popular governments, as well as in monarchies, to vest in
some other authority than the courts power to ameliorate or
avoid particular criminal judgments. It is a check entrusted to
OH

the Executives for special cases.

In India, the law commission is also of the same view that the
pardoning power is mandatory for the correction of a possible judicial

79. George Bernard Shaw quoted by Supreme Court of India in Mohammad

Giasuddin v. State ofAndhra Pradesh, AIR 1977 SC 1926 ; (1977) 3 SCC 287.
80. Kehar Singh v. Union of India, AIR 1989 SC 653 at 657.
81. Ex parte Grossman, (1924) 69 Law Ed. 527.

47
 82
error. It also quoted certain reasons for the same. The commission
observed that:
There are many matters which may not have been
considered by the courts. The hands of courts are tied down
by the evidence placed before it. A sentence of death, passed
by a court after consideration of all the material placed before
it, may yet require re-consideration because of (i) facts not
placed before the court; (ii) facts placed before the court, but
not in proper manner; (Hi) facts discovered after the passing of
the sentence; (iv) events which have developed after passing
of sentence; and (v) other special features.^^

Therefore it is quite clear that the power to grant pardon is useful for
correction of judicial error. It is also of great help in cases where the law
appears to be so harsh. One of the biggest examples of the harshness of
law is the case of R. v. Dudley.^^ In this case three adults namely Stephen,
Dudley and Brooks and a boy namely, Parker were caste away in a storm
on the high seas and were compelled to sail into an open boat. After
sailing for a few days they had no food or water in the boat. After 18 days
Dudley suggested to Brooks to sacrifice the boy. But Brooks disagreed. On
the 20*^ day Dudley with the consent of Stephen, but not of Brooks killed
the boy but all the three fed upon the boy for four days when they were
picked up. It was found that the boy was in a weaker condition and likely to
die earlier than the others. If the sailors could not have fed upon the boy,
they would not have survived and that there was no chance of saving life
except by killing someone for the others to eat. In this case the offence has
definitely been committed. The necessity to kill is not justified in the eyes of
law. Therefore, as per the law, punishment is compulsory. But still the
humanity demands that there shall be interference with the due course of
law. But the court can never do it as it is bound to follow the codes and

82. Law Commission of India, 35'^ Report on Capital Punishment, (1967).

83. /cf., at 328, para 1071.
84. (1884)14Q.B.D. 273.

48
procedures. Hence there shall be some mechanism to deal with such type
of problems and the most appropriate remedy to this is the exercise of the
power of pardon by the executives.
We need clemency power to be exercised because the extrajudicial
corrective of clemency provides a safety valve for our criminal justice
system, another opportunity for an offender to tell her story more
thoroughly, or at least differently, than she could at trial.®^ Moreover, with
proper safeguards to assure access to sufficient information, clemency can
provide a sense of perspective on how fairly a particular justice system is
operating.®®
Therefore on the basis of the above discussion it is clear that the
basic object of the pardoning power is the public welfare. Sometimes it is
useful to bring back the rebels or to rehabilitate the offenders and
sometimes it helps the persons who faced difficulties because of the error
of law or the harshness of law.
8. Origin and Development of Pardoning Power:
In order to find out the historical background of this power to grant
pardon it appears compulsory to know the development of the law of
pardon in different countries including India. Here the researcher first of all
found it necessary to study the origin and development of this power in
England and United States.
The basic reason for studying the law of England is that before the
framing up of the Constitution of our country, we were governed by the
rules, regulations and laws framed by the Britishers. These laws put a

85. Daniel T. Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power
from the King", 69 TLR 601 (1991).
86. For example, a single court that imposed the death penalty from time to time in
individual cases might not detect a racially discriminatory pattern in the
imposition of capital punishment. In contrast, a clemency commission that
possessed a universe of all death sentences imposed within the jurisdiction could
more easily determine if capital punishment was being imposed unfairly because
of the race of the offender or the victim.

49
great impact on the present laws. Especially the law of pardon can be said
to be an outcome of the Codes of Criminal Procedure and the Government
of India Act, 1935. Since in India the power to grant pardon has basically
been adopted from England therefore in order to trace the true nature of
this power it becomes necessary to study the origin of pardoning power in
England.
The researcher also found it necessary in order to enrich the study
by scrutinizing the growth of the exercise of the law of pardon in United
States as this country is one of the biggest developed democracies of the
world where proper implementation of the rule of law is quite eminent. The
study of the exercise of the pardoning power in different cases in United
States will help the researcher to find out the basic objective of this power
and to know the loopholes or drawbacks if any. It is not only the researcher
who opted out to study the law of United Kingdom and United States but
even the Supreme Court of India in each and every case wherein it went
into the depth of the law of pardon, found it necessary to study the law of
pardon in these two countries. In the words of Justice Kapoor.
In India also the members of the Constituent Assembly
were familiar with the English institutions and the powers of
the English Kings and the exercise of their power both by the
Governor General and the Governors of British India and its
provinces. It will be legitimate to draw on English law for
guidance in the construction of articles dealing with the power
of the President and of the Governor in regard to pardon
including the other forms of clemency comprised in the two
articles. It will not be inappropriate to say that the framers of
the Indian Constitution were not only familiar and trained in
British jurisprudence but were familiar with the American
Constitution, and they were drafting their Constitution, in the
English language and therefore, to draw upon the American
parallel would be legitimated^
A. In England:
In England, so far as the power to grant pardon is concerned it is

87. K. M. Nanawati, supra note 40 at 180.

50
known as the prerogative of mercy. It is regarded as Royal Prerogative
exercised by the sovereign with the help of the Home Secretary to whose
notice the matter is brought either on a recommendation to mercy by the
judge when passing sentence, or on petition filed by the criminal himself or
his friend on his behalf.®^ This power may be called to be an act of grace
and may be exercised by sovereign on various grounds as he may deem
fit and proper. This sovereign is none but the Crown of the United
Kingdom.
As the Crown was the highest authority in England therefore he
enjoyed so many powers. He was the main source of law. It has rightly
been observed by Mr. Pillai and Mr. Balakhshanan that:
King was the fountainhead of justice in common law.
From this position emanated the fundamental principle that
King can do no wrong. It is also from this position that the idea
of prosecution, withdrawal of prosecution etc. emerged. The
King was thus the repository of judicial, legislative and
executive power.^^

Similarly the power to grant pardon was also vested in the crown
90

itself. Initially this Royal Prerogative of mercy was being exercised

inconsistently by the crown. Although this power ultimately became a
central component of the Royal Prerogative, the crown at first had many
competitors for the pardoning power, including the clergy, the great earls,
91
and feudal courts. Gradually, however this power was formally
consolidated in the crown, with Henry VIII finally seizing the pardoning
power in 1535. In that year, the parliament was persuaded to pass an act
committing to the King "the whole and sole power and auctoritie" to pardon
88. Halsbury's Laws of England, supra note 22 para 825. As per this Encyclopedia
the mercy power of the sovereign has been a creation of the common law.
89. K. N. Chandrashekharan Pillai, and K. Balakrishanan, "Pardoning power -
need for a fresh look", 24(1-2) ALR 225.
90. Halsbury's Laws of England, supra note 22 para 823.
91. Stanley Grupp, "Some Historical Aspects of the Pardon in England", 7 AJLH 55
(1963).

51
or remit treasons, murders, manslaughters, felonies, or outlawries.^^ With
the passage of time some limitations were placed on the clemency power
at common law. The Parliament passed some Acts which imposed
restrictions on the pardoning power of the Crown. In the year 1679, the
Parliament passed an Act whereby it prohibited royal clemency in cases
in which persons were convicted of causing others to be imprisoned
outside England, and thereby placing them beyond the reach of English
Habeas Corpus Protections. In the year 1700 Parliament succeeded in
permanently removing pardon as bar to impeachment,^"^ although the
Crown's power to pardon after sentencing was not correspondingly
95

limited. These limitations on executive clemency did not alter the

established practice of exercising the power for reasons entirely unrelated
to justice.
The pardon prerogative resting in the late 18*^ century developed
through two analytically distinct struggles. On the one hand, the power
evolved as part of the general constitutional developments that separated
the powers of government in England and subjected the monarch to the
rule of law. As late as the Stuart era, the King exercised great legislative
power through proclamations and, along with the Royal Council, exercised
96

judicial powers through the court of Star Chamber. Not until after the
Glorious Revolution of 1688 did the royal oath include the promise to
govern according to the laws of the Parliament; only thereafter was the
claim, originally made in 1610 by the House of Commons, of the "right of
92. An Acte for Recontynuyng of +mctayne li+mbties and fracheses heretofore taken
frome the Crowne, 1535-36, 27 Hen. 8, ch. 24 quoted by Daniel T. Kobil, "The
Quality of Mercy Strained: Wresting the Pardoning Power from the King", 69 TLR
596(1991).
93. The Habeas Corpus Act, 1679.
94. Act of Settlement, 1700.
95. Halsbury's Laws of England, supra note 22 para 823.
96. F. Maitland, Constitutional History of England, Cambridge University Press,
1919, at 218-22, also available at: http://www.archive.orq/stream/constitution
alhi029314mbp#paae/n5/mode/2uD. (Visited on May 07, 2011).
52
the people not to be subject to punishment other than obtained by common
law or act of Parliament" part of English constitutional scheme.^^ By the
late 18'^ century the separation of powers had become a salient feature of
English Government.^^
The second conflict defining the pardon power arose over the
exercise of the power itself. The various clans competing for power in
Celtic and Anglo-Saxon England had exercised some clemency, through
the prevalence of private feuding left mercy largely to the individual
involved. With the Norman conquest came the attempt to consolidate the
pardon power, along with the other appurtenances of sovereignty, in the
King's hand. ° On papers or in theory, the King exercised the prerogative
to interrupt the criminal process when considerations of mercy or state
101

demanded. But as a matter of fact, such abuses as the sale of pardons

became common,^°^ and by the 14*^ century Parliament was trying to limit
such excesses. Parliament nevertheless continued to impose restrictions
upon the King's power in particular areas,^°^ and by the mid 17**^ century,
104

the legislative body had assumed the power to issue its own pardons
and even at present the Crown can exercise this power to grant pardon on
the advice of the Home Secretary.^°^
97. Id., at 257.
98. William Searle Holdsworth, A History of English Law 713-15 (Methuen
Publishers, London, 1938).
99. 3 U. S. Dep't of Justice, The Attorney General's Survey of Release Procedures
(1939) pp. 25-27; see also Records of the Attorney General's Sun/ey of Release
Procedures available at: http://www.chapters.indigo.ca, (Visited on May 07,
2011).
100. Id., a\ 27-37.
101. /d., at 55-86.
102. /c(., at 30-32.
103. The Habeas Corpus Act, supra note 93, This Act made the Imprisonment of an
English subject outside of England or Wales, and the sending of subject to such
imprisonment, unpardonable offences. This Act provided that King's pardon
could not be pleaded in cases of impeachment; see also Knote, supra note 14,
104. Supra note 99 at 29.
105. Halsbury's Laws of England, supra note 22 para 825.
53
 Describing the nature and scope of the mercy power of the Crown,
Philips and Jackson have remarked:
The sovereign acting in England and Wales by the
Home Secretary, may pardon offences of a public nature,
which are prosecuted by the Crown. The Exercise of
prerogative is not subject to judicial review; mercy is not the
subject matter of legal rights. It begins where legal right ends.
(De. Freitar v. Beny (1976) A. C. 239, 247 per Lord Diplock) A
pardon may generally be granted before or after a conviction,
but no pardon may be pleaded as a bar to impeachment (Act
of Settlement), nor may the Crown remit the penalties
prescribed by the Habeas Corpus Act, 1679 for sending a
person outside the realm. The Crown cannot by a pardon
deprive a third party of this right.^^^

The law of pardon that was applicable in England was equally

applicable in the same manner in all its colonies. The principle of non-
interference in this power of the Crown, by the Courts in England was also
followed by the courts working for British Colonies and they refrained
themselves from interfering in the exercise of this power of pardon. The
best example of this is the case decided by the Privy Council in a petition
107
filed by an Indian in Balmukand case. In this case it was held that the
exercise of prerogative of mercy is an executive power and the Privy
Council did not possess any power to interfere in the exercise of this power
hence the Privy Council can never advice the Crown to exercise the
power. The Privy Council clarified that:
Their Lordships are unable to advice His Majesty to
make any order on the petition for special leave to appeal...
With regard to staying execution of sentence of death, their
Lordships are unable to interfere. As they have often said this
Board is not a Court of Criminal appeal. The tendering of
advice to His Majesty as to the exercise of his prerogative of
pardon is a matter for executive Government, and is outside
their Lordships province.^^

106. O.H. Philips, and Paul Jackson, Constitutional and Administrative Law 378-79
(Sweet and Maxwell, London, 6"" edn., 1978).
107. Balmukand v. King-Emperor, AIR 1915 PC 29.
108. Ibid.

54
 This judgment made it clear that even the biggest authority in the
field of judiciary in England i.e. Privy Council, cannot interfere in the
exercise of prerogative of pardon which was held to be an act of the
executives. The court does not have power to suggest or tender advice to
the Crown either to exercise this executive power or not to exercise this
power. It is simply the royal prerogative of the Crown or the subject matter
of the Crown and it can never be controlled by the judiciary.^°^ In other
words it was a part of that special pre-eminence which the King "hath over
and above all other persons and out of the ordinary course of the common
law in right of his royal dignity."^^° As said earlier that this stand of non-
interference by Privy Council is not only applicable to the British colonies
but it also extends to England as well. In another landmark Judgment the
Privy Council itself held that "it is not within the judicial competency to
control, interfere with, or even to advise the executive when the executive
is exercising its power to grant reprieves, commutations and pardons.^^^

In a very significant case^^^ before the House of Lords the question

was that whether the prerogative can be exercised by any other person on
behalf of the Crown and if it can be exercised then to what extent? In this
case the House of Lords dealt with the question whether the power of
Attorney - General exercised on behalf of the Crown to refer any matter to
court amounts to the contempt. In this regard Lord Diplock observed:
Mr. Lords, it will I believe have been apparent from what
I have already said that, unlike the Court of Appeal, so far
from criticizing I commend the practice which has been
adopted since 1954 as a result of the observations of Lord
Goddard CJ in R. v. Hargreaves, ex parte Dill (1954) Crim.
LR, whereby the Attorney General accepts the responsibility of
receiving complaints of alleged contempt of court from parties
to litigation and of making an application in his official capacity

109. S. Musharraf Ali, "Maintenance of Pardon and Rule of Law, 9 ALJ 73 (1988).
110. ld.,aX7A.
111. Kuruma v. R. 1955 AC 197.
112. Attorney-General v. Times Newspaper Ltd., (1973) 3 All. E. R. 54.

55
 for committal of the offender if tie ttiinf<s ttiis course to be
justified in public interest. He is ttie appropriate public officer
to represent ttie interest in the administration of justice. In
doing so he acts in constitutional theory on behalf of the
Crown, as do Her Majesty's judge themselves; but he acts on
behalf of the Crown as 'the fountain of justice' and not in the
exercise of its executive function. It is in a similar capacity that
he is available to assist the court as amicus curiae and is a
nominal party to relator action. ^ ^ ^

From this decision of the House of Lord it is evident that the

discretionary nature of prerogative of the crown is not limited in its exercise
to the crown itself, but any officer who exercise that power on behalf of the
crown, enjoys full freedom in this regard and the court had refrained from
interfering in such exercise.
In Council of Civil Service Union and others v. Minister for Civil
Sen/ice ^^"^ while dealing with the most important question of judicial review
of this power, the House of Lords for the very first time held by majority
that all the power exercised directly under prerogative are not by virtue of
their prerogative source automatically immune from judicial review. Before
this judgment the prerogative of mercy was completely out of reach of
judicial review. But in this case the court made it clear that if the subject
matter of prerogative power is justiciable than the exercise of power is
open to judicial review in the same way as a statutory power. However
Lord Roskill observed that prerogative power such those relating to making
of treaties, defence of realm, the prerogative of mercy, the grant of
honours, the dissolution of Parliament, and appointment of ministers are
not justiciable or reviewable.^ ^^
Therefore by virtue of this judgment it is clear that now in England
the prerogative of mercy is not immune from judicial review. Moreover this

113. id., a\ 74.

114. (1984) 3 All. E. R. 935; see also R. v. Secretary of State for ttie Home
Department, ex parte Bentley, (1993) 4 All ER 442.
115. /cf.,at956.

56
prerogative of mercy cannot be exercised by the Crown himself as he is to
act on the aid and advice of the Home secretary. Referring to the nature of
pardoning power of the Crown, Chalmers and Hon'ble Asquith
remarked:
"Pardon is a part of the judicial prerogative. The policy
of the public offender has been questioned by Beccaria on the
ground that clemency should shine forth in the laws and not in
the execution of them. By Convention the King only pardons
on the advice of the Home Secretary."^^^

Therefore it can be concluded that the mercy power of the King in

England is considered as a royal prerogative and this power of sovereign
can only be exercised on the advice of the Home Secretary. Although it is
termed as an act royal grace or a Royal Prerogative, but now it is subject
to judicial scrutiny. The law of pardon in England can be concluded in the
following words:
The prerogative is thus created and limited by the
common law, and sovereign can claim no prerogatives except
such as the law allows, nor such as are contrary to Magna
Carta or any other statute, or to the liberties of the subject.
The courts have jurisdiction, therefore, to inquire into
the existence or extent of any alleged prerogative ^ ^ ^

B. In United States:
Just like England, in the United States, the power to grant pardon
has been conferred on the head of the State i.e. the President. Although
here the provision is contained in the Constitution but this power has been
conferred upon the President on the norms and conventions that remained
in existence in the soil of United Kingdom. As a matter of fact it has been
accepted by the Supreme Court of United States that by choosing to
repose the clemency power in the chief executive alone, the framers of the

116. Dalzeii Chalmers and Cyril Asquith, Outlines of Constitutional Law 157 (Sweet
and Maxwell, London, 5"^ edn.)
117. Halsbury's Laws of England, supra note 22 Vol-7 at 221; see also K.M. Nanavati
V. State of Bombay, AIR 1961 SC 112 at 119.

57
Constitution of United States aligned themselves with a vision of the power
that was decidedly British in nature.^^® The basic reason for adopting the
same patron is quite obvious that United States was colonized by Great
Britain and after independence it adopted so many existing customs,
usages or the laws.
Before the independence the king in most instances delegated the
pardoning power to his counterpart and direct representative in the New
World, the royal governor.^^^ However the Revolution ushered in a period
of distrust of strong executive authority and temporarily brought to an end
the executives clemency monopoly. By the time the constitution was
drafted in 1787 and the power to grant pardon was conferred in the
President of United States. The Constitutions of all states also conferred
the power to remit punishments for crime in legislative Council and the
120
governor jointly or in the governor alone.
When the framers of the Constitution of United States included the
power to grant pardon in Article II of the Constitution of the United States,
they did so with the understanding that there must be some ability to
dispense "the mercy of government" in exceptional cases where the legal
system fails to deliver a morally or politically acceptable result.^^^

118. Wilson, supra note 71 at 643. In this case Chief Justice Marshal said:

As this power had been exercised from time immemorial by the

executive of that nation whose language is our language, and to whose
judicial institution ours bears a close resemblance; we adopt their
principles respecting the operation and effect of a pardon, and look their
books for the rules prescribing the manner in which it is to be used by the
person who would avail himself of it.
119. Daniel T. Kobil, supra note 85 at 589.
120. The power to grant pardon has been conferred by State Constitutions, Colonial
Charters, and other Laws of the States, Territories, and Colonies now or
heretofore forming part of United States e.g. Virginia Charter of 1609, at 1858,
Charter of Maryland, 1632, Charter of Massachusetts Bay, 1639, Charter of
Carolina, 1665, at 2551, Charter of Georgia, 1732 etc.
121. Margaret Colgate Love, "Reinventing the President's Pardon Power", ACSLP 2-3
(October 2007), also available at: http://www.acslaw.org, (Visited on May 07,
2011).

58
 Alexander Hamilton described pardon as a "benign prerogative" and
understood the term in the sense of "doing public good without any rule",
therefore he said that congress would enact rules of imprisonment, but the
decision about when to make exceptions to those rules would be entirely
the president's free choice, an act of grace perhaps, but not a private
122
one.
It was in the minds of the framers of the constitution that in addition
to mitigating "the rigor of the law" in individual cases, pardon also would
have a more purely political function, to put down rebellions, reward spies
and cooperators, and heel the wound of war. Alexander was of the opinion
that the framers were well aware of the historical abuse of the English
King's pardon, even then the framers nonetheless determined to vest this
great power in the president alone, because of the occasional need for
speed and secrecy, and because "the sense of responsibility is always
strongest in proportion as it is undivided."^^"^ They put the pardon power
beyond the reach of Congress and the courts, trusting that a president
would be restrained in its exercise either by the threat of reprisal at the
ballot box or by the damnation of his fame to all future ages.
From the earliest days of the republic, federal pardons served both justice-
dispensing and political functions. Pardon proved its practicality right away,
in helping the president to deal with a series of rebellions and invasions in
the early years of republic and it brought rebels back into the fold and
helped to repopulate the army by resorting deserters to service.^^^
In the year 1795, President George Washington initiated for the very
first time in the history of independent United States, the use of pardon

122. 7/76 Federalist No. 74 Alexander Hamilton 422 (Penguin Book Ltd., London,
1987), also available at: http://www.amazon.com. (Visited on May 07, 2011).
123. /d, at 423.
124. Alfred H. Kelley, A. Harbison Winfred et.al., The American Constitution: Its
Origins and Development 718 (W. W. Norton and Company, New York, 7*^ edn.,
1991).

59
power by issuing an amnesty to quell the Pennsylvania Whiskey Rebellion
and later he also pardoned those of its leaders who were convicted of
treason.^^^ A few years later in 1799, President John Adams faced another
insurrection popularly known as Fries Rebellion, against the collection of a
federal tax. Federal assessors were assailed by a mob of German
American farmers who were in turn, taken into custody. For the purpose of
forcing the release of these farmers, Jacob Fries then led an armed group
of about one hundred men against the Marshall. Adams requested a
contingent of militia from the Governor of Pennsylvania, mobilized United
States army troops and sent members of a voluntary cavalry to the scene.
There was no show of resistance upon the arrival of the forces, and Fries
was apprehended peacefully. He along with two others was found guilty on
the charge of treason and were sentenced to be hanged. Against the
unanimous advice of his Cabinet, President John Adams, in order to serve
"the public good," issued a presidential pardon to all persons involved in an
insurrection in Pennsylvania.
In the year 1800 the Federalists were soundly defeated by the
Republican in the election and the newly elected President Thomas
Jefferson utilized the clemency power to pardon all those convicted and
sentenced under the Alien and Sedition Act^^'^ which the Federalist had
used in clear violation of the first amendment, to silence the Jeffersonian
Republicans.^^^

125. James D. Richardson, 1 A Compilation of the Massages and Papers of

Presidents, 1789 - 1895 Presidential Proclamation (July 10, 1795), 181
(Washington, DC, 1896), also available at: http://www.presiden cv.ucsb.edu.
(Visited on May 07, 2011).
126. Id.. Presidential Proclamation (May 21, 1800) at 303-04.
127. The Alien and Sedition Act, 1798 made it illegal for any person to write, print or
publish "any false, scandalous and malicious writing against the government of
the United States, or either House of Congress or the President with intent to
defame or to bring them, or either of them, into contempt or disrepute; or to
excite against them the hatred of the good people of the United States.
128. Daniel T. Kobil, supra note 85 at 593.

60
 During the war of 1812, the then President James Madison issued a
very famous order of pardon to a class of individuals known as the
''Barataria Pirates." who were basically army deserters, on condition that
they return to their respective units. The group of about 800 persons was
led by Jean Laffite who maintained his headquarters on one of islands in
129

the Many Bay inlets on the Mississippi delta off the coast of Louisiana.
The British government offered Laffite $30,000, a pardon, and a captaincy
in exchange for assistance in the attack on New Orleans. But Laffite not
only refused the offer but informed the government of the United States
and offered it the services of Barataria smugglers. Therefore in order to fill
up army ranks to fight the war of 1812, President James Madison
pardoned deserters and after the war in the year 1815 pardoned Jean
Laffite's Pirates.''^°
The deserters who fought against the Union and the polygamists
have also been the recipients of the acts of executive clemency
conditioned on their voluntary taking an oath to uphold the constitution.^^^
But, until the civil war, the exercise of pardoning authority had not
provoked serious controversy or questions. From the very beginning of his
administration. President Lincoln "applied a policy intended to encourage
desertions from the enemy without fear of punishment".^^^ He issued
pardons throughout the civil war to deal with desertion and draft evasion
133

on the union side and to undercut the rebellion on the border states. His
December 1863 proclamation of general amnesty was greeted with much

129. John K. Mahon, Ttie War of 1812, Gainesville (University of Florida Press,
Florida, 1972); see also Donald R. Hickey, The War of 1812 (University of Illinois
Press, Chicago, 1989).
130. Margaret Colgate Love, supra note 121 at 3.
131. Willium F. Duker, 'The President's Power to Pardon: A Constitutional History", 18
WMLR 509 {^977).
132. Jonathan Truman Doris, Pardon and Amnesty under Lincoln and Johnson 86
(The University of North Carolina Press, Chapel Hill, 1953).
133. Supra note 121 at 5.

61
opposition by the people of tine nortii and, consequently, many regarded
his assassination as "a godsend to the country". Andrew Johnson's
1865 clemency programme sparked the initial threats of his
135

impeachment, but his December 25, 1868, pardon of Jefferson Davis

and other confederate soldiers was definitely the most salient exercise of
executive clemency to date. Daws was charged with complicity in the
assassination of Lincoln and his captors were rewarded with $100,000.
Johnson received thousands of passionate letters arguing for and against
further punishment to Daws. To complicate matter. Daws refused to file
petition before the President for clemency. In fact. Daws told the 1884
Mississipi legislature that "repentance must precede the right of pardon,
and I have not repented." Daws added he "would again do" what he did in
1861 "if it were to do over again." As the end of Johnson's administration
approached, Davis was the only civil leader of the Confederacy who was
imprisoned. The awkward nature of imprisonment and the persistent
lobbying of prominent individuals encouraged Johnson to issue the
amnesty.^ ^®
In the later stages the power to grant pardon was used for bringing
back the deserters into the main stream. Just like Lincoln and Johnson,
President Grant used the power to cleanup afterwards, as did President
Theodore Roosevelt, Coolidge, Harding and Truman in connection with
later wars.^^^
The American history of pardoning power reveals that this power has

134. Jonathan Truman Doris, supra note 132 at 94.

135. /cy.,at305.
136. P.S. Ruckman, Jr., "Executive Clemency in United States: Origins, Development
and Analysis (1900-1993)", 27 PSQ 8 (1997).
137. Id., at 9, as a matter of fact President Roosevelt pardoned participants in the
Philippine insurrection. President Coolidge pardoned World War I deserters,
President Harding Commuted the sentence of dozens of people imprisoned
under sedition and espionage laws, and President Truman pardoned people with
convictions who had served honourably in World War II.

62
t *»*»•
also been used for some other purposes that may be termed as political or
other purpose but not in the national interest. In the year 1971, President
Richard Nixon commuted the sentence of James R. Hoffa, a former
president of International Brotherhood of Teamsters. The commutation
was in many respects controversial especially as Hoffa had supported
Nixon in the presidential elections. ^^^ Nixon, of course, found himself on
the other end of the clemency power just three years later. Within one
month of assuming the presidency Gerald Ford granted a full and free and
absolute pardon to Nixon for all offences against the United States
139

committed or taken part. While criticizing the proclamation of the

President Gerald Ford the great jurists Oram and Rudoni^^^ concluded that
Ford "closed the decision-making process to dissenters, secretly
developed his own response and then took unilateral, non-reciprocal,
discretionary action without adequately assessing the cost of his action on
the criminal justice system." Within one week of the pardon Ford's public
approval rating plummeted in the polls from 71 to 50 percent. Moreover the
pardon "haunted Ford throughout the remainder of his presidency and, in
all likelihood, doomed his chances for election to that office."^'^^ As a
matter of fact Nixon pardon came before a sentence, trial, conviction, and
punishment. The allowance of Ford's pardon to Nixon struck right at the
very heart of the clemency issue and this pardon proved that there were
indeed no true restrictions or ramifications that accompanied a
controversial pardon. This also set a new precedent for the presidents who
followed Ford - {Carter, Reagan, Bush, and Clinton). Ford proved to them

138. John M. Oram and Rudoni Dorothy, "Exercis of the President's Discretionary
Power in Criminal Justice Policy", 9 PSQ 417 (1979).
139. See, Presidential Proclamation 4311, (1974), 39 Federal Register, 32601-0281,
available at: http://en.wikisource.org/wiki/Proclamation 4311, (Visited on May 07,
2011).
140. Supra note 138 at 421.
141. David Gray Adier, The Presidents Pardon Power, in Inventing the American
Presidency 223 (University press of Kansas, Lawrence, 1989).

63
that they could use the power to aid their political future or to bail
themselves out in a time of need.^'*^
The significance of the Nixon pardon was immediately
acknowledged by Jimmy Carter, who would immediately use the power to
aid him in his bid for the presidency. Unlike Ford, Carter knew the
importance of this precedent to his future campaign and presidency. Carter
was aware that Ford had issued certain restricted pardons to Vietnam War
personnel but had not issued pardons to those who evaded the draft and
fled to another country. Ford's amnesty program placed itself halfway
between unconditional amnesty and no amnesty at all. Ford had
addressed the Chicago convention of Veterans of Foreign Wars stating
that I am a long-time opponent of any unconditional blanket amnesty for
those who evaded or fled military service but the time is at hand to bind up
the wounds of the nation^'*'^ Ford's pardon was issued to those evaders
and deserters who were still at large in number and to those who had
earlier surrendered to or had been caught by military authorities. It would
include those who had been convicted or otherwise punished for their
offenses and those who still awaited trial or sentencing. Ford did not refer
to the program as an act of amnesty but rather as a program of earned re-
entry into the mainstream of American society.^^"^ Ford however
accompanied his pardon with a few conditions: (1) The deserters and
evaders had to consent to do up to twenty-four months in public service
work that the government called reconciliation service. Such work was
intended to take the place of military duty or any fines or prison sentences
that might otherwise be imposed. They ranged from work as hospital
attendants and orderlies to that as workers

142. Mark J. Rozel, "President Fords Pardon of Richard M Nixon: Constitutional and
Political Considerations" 24 PSQ 121(1975).
143. Edward Dolan, Amnesty: The American Puzzle 71 (Franklin Watts, New York,
1976).
144. Ibid.

64
with public service organizations, ecological projects, and church groups
dedicated to the public good. They were to be paying jobs, but, because of
their nature, the pay was to be low. (2) Certain of the evaders and
deserters were to sign their names to documents reaffirming their
allegiance to the United States and pledging to do the twenty-four months
of reconciliation service. This condition applied only to those evaders and
deserters who had not yet been convicted for their offenses. All of those
who did not fit in these above mentioned categories or those who had
already been convicted or punished would have to independently apply to
the president's clemency board.^"^^ Although Ford had theoretically
pardoned the Vietnam draft dogers, he had not accomplished the
tranquility he wanted. The halfway pardon he had issued failed to silence
the subject. Carter took this issue and ran. Carter repeated this slogan at
every campaign that if he were elected he would pardon these resisters
and move America past this controversial era. Ca/ter campaigned on the
issue of the pardons offering up that if elected one of the first things he
would do, would be to override Ford's pardon. Carter held true to his word
issuing his blanket pardon just days after taking his oath to the office of the
President of United States. On January 21, 1977 Carter issued his
proclamation ending forever the legal matters surrounding Vietnam draft
evasion.^"^^ The proclamation however did little for the actual debate over
whether or not the pardon deserved. Many military officials as well as
dedicated patriots strongly disagreed with the pardoning of these
147
persons.

145. Alfonso Damico, Democracy and the Case for Amnesty 8-10 (University of
Florida Press, Gainesville 1975), also available at: http.7/www.questia.com,
(Visited on May 07, 2011).
146. U.S. President, Proclamation, Granting Pardons for Violations of Selective
Service Act, Proclamation 4483, Federal Register 42, no. 250 (21 January 1977),
available at: http://en.wikisource.orq/wiki/Proclamation 4483. (Visited on May 07,
2011).
147. Edward Dolan, supra note 143 at 87.

65
In the year 1979, President Carte/-jumped into the pardon arena with a
148

very controversial act of clemency. In December 1979, he decided to

pardon Irving Flores Rodriguez, Lolita Lebron, and Rafael Cancel Miranda.
In 1954 these Puerto Rican individuals, upset over American domination in
their homeland, decided to raid Congress. Led by Lolita Lebron they broke
into the Capitol building and sprayed the chamber floor wounding five
Congressmen before they were arrested. President Carter backed his
decision to pardon them with the argument that they were the oldest
political prisoners in the hemisphere and it was time to move on. While
criticizing the decision of the President Carter, Allen rightly said that these
people should not have been viewed as political prisoners because they
were not arrested on the basis that they held different views, they were
arrested because they tried to murder numerous members of the House of
Representatives. ^"^^
President Carter moved on to another so-called pardon of "political
prisoner" when he pardoned Oscar Collazo, who in the year 1950 had
150

attempted to assassinate President Truman. Collazo had not been

happy with Americanism in Puerto Rico and decided that one way to end
the American encroachment was a direct attack on then President Truman.
Collazo alongwith his partner stormed the grounds of the Blair House and
began to trade fire with Secret Servicemen. Three Secret Servicemen
were killed but before their death they killed Collazo's friend and critically
wounded Collazo as well. President Truman, however, was not injured in
the crossfire. For his involvement, Collazo received the death sentence but
one week before the execution, Truman

148. Michael Keith Allen, "Pardon You? Pardon Me Controversial Usage of the
Presidential Pardoning Power: From Carter to Clinton", 16 PSQ 13 (2003).
149. Ibid.
150. Truman Presidential Museum and Library, Assassination Attempt on President
Truman's Life, available at: http://www.trumanlibrarv.orq, (Visited on May 07,
2011).

66
stepped in and commuted the sentence to life imprisonment. Apparently
Carter felt that the death punishment was too harsh for an attempted
assassination of a U.S. President as well as the murder of three Secret
Servicemen. ^^^
Carter followed the Collazo pardon with one of his most controversial
acts of clemency. In 1979, Carter decided to commute the sentence of
media heiress Patricia i-iearst. IHearst was a teenage-girl who was
abducted from her house in Berkeley California by a terrorist group. The
group demanded that her father should share his wealth by starting a $2
million food drive, which he did. A month later Miss Hearst announced on a
tape recording that she had taken the name Tania and had decided to join
her kidnappers. A photograph of Miss Hearst carrying a gun in front of a
poster depicting the Symbionese Liberation Army's symbol, a seven-
headed cobra, accompanied the tape. In 1974, she joined her accomplices
in a successful bank robbery. On May 16th of the same year Miss Hearst
sprayed a Los Angeles street with bullets to cover her accomplices escape
from a shoplifting spree. In the year 1975 she was captured in San
Francisco.^^^ Hearst was first tried for her involvement in the bank robbery,
for which she would be sentenced to seven years in jail. She was later
released on $1.5 million bail, pending the appeal of her charges. Hearst
then failed to convince the Supreme Court of her need for an appeal.
Before she started to serve her sentence she had to be tried for her
involvement in the sporting store robbery. In this trial Hearst was charged
with assault with a deadly weapon and robbery in which she pleaded "no
contest" and received five years probation. After Miss Hearst was denied
her last appeal, her lawyers decided to use another

151. Ibid.
152. Patricia Campbell Hearst, Every Secret Tfimg 140 (New York Doubleday and
Company, 1982), available at: http://www.amazon.com ; http://en.wikipedia.o
rg/wiki/Pattv Hearst, (Visited on May 07, 2011).

67
route. They approached the Attorney General, Griffin Bell, and asked for
his assistance in securing her a pardon. Within in less than thirty days
President Carter stepped in and commuted Hearst's sentence. Although
President Carter made no official statement but the White House stated
that, "Miss Hearst needs no further rehabilitation and she is no risk to the
community" ^^^
During Carter's four-year term he had not issued many pardons and
of those not many were controversial. He had, however, started a new
trend in the usage of pardons. This trend was the use of pardons as
appeasement. That is any time that you believe a well-timed pardon would
help the administration, politically, issue it.^^^ He apparently did not pay
enough attention to Hamilton's observations on the exercise of pardon that
"a well timed pardon may secure the tranquility of a nation"^ ^^ Adier rightly
said that Carter had learned from the Nixon pardon that pardons could
either hurt or help you. This meant that you needed to pardon people that
would appease the country, someone that would gather the majority's
156

sympathy thereby resulting in a boost at the polls. Commenting on the

overall performance of exercise of pardoning power by President Carter,
Ruckman observed that in nutshell we can say that Carter did not overuse
his power to pardon nor did he make a new precedent with an extremely
controversial pardon, what he did was the use of power to his advantage
politically. Carter used the power for the first time in history as a promise of
what he would do once elected and he continued its use to appease the
country, hoping to aid his falling approval rates. In essence Carter paved
the way for the next president, Ronald Reagan and all future ones to use
his and Ford's pardons as stepping-stones for their political advancement

153. Ibid.
154. David Gray Adler, supra note 141 at 225.
155. The Federalist No. 74 Alexander Hamilton, supra note 122 at 425.
156. Supra note 141 at 225.
68
through the issuance of pardons.^^^
Although it was evident that Jimmy Carter had issued pardons to
keep himself in the good graces of the American people, he had not been
able to do enough to ensure himself reelected as President of the United
States. Ronald Reagan soon became the beneficiary of a country that was
not pleased with the state of affairs in America under Jimmy Carter.
California Governor Ronald Reagan won the presidential election in the
year 1980.''^^
Ironically the steps that Reagan took to ensure his presidential seat
eventually resulted in the issuance of an even more controversial pardon
than the one received by Richard Nixon. Just like President Carter,
Reagan knew that he had to promise certain actions once in order to win
the 1980 presidential election. Reagan had noticed that Americans were
extremely upset with Carter for not bringing home the six American
159
hostages In Iran and decided that this was the promise that he would
make. Reagan promised to bring the hostages home, but he also took
another step, which was one of the greatest controversial legality. People
in Reagan's future administration involved themselves directly in bringing
home the hostages before Reagan had been elected. The trade promise
that arose resulted in the Iran Contra scandal in which arms were traded
for hostages. The pre-mentioned trade promise of Reagan's administration
eventually placed administration officials on the receiving side of the
pardon process. This Iran Contra scandal was basically a political scandal
which was revealed in the year 1986. It began as an operation to increase
U.S.-lranian relations, wherein Israel would ship weapons to a moderate,
politically influential group of Iranians and the United States would

157. P.S. Ruckman, Jr., supra note 136 at 10.

158. The Presidents of United States, available at: http.//en.wikipedia.org/wiki/
List of Presidents of the United States. (Visited on May 07, 2011).
159. Iran - Contra Affairs: American political scandals, available at: http://en.wik
ipedia.org/wiki/lran-Contra Affair. (Visited on May 07, 2011).

69
reimburse Israel for those weapons. The moderate Iranians agreed to do
everything in their power to achieve the release of six U.S. hostages, who
were being held by Hezbollah. But the plan eventually deteriorated into an
arms-for-hostages scheme, in which members of the executive branch
sold weapons to Iran in exchange for the release of the American
hostages, without the direct authorization of President Ronald Reagan ^^^
After the weapon sales were revealed, Ronald Reagan appeared on
national television and stated that the weapons transfers had indeed
occurred, but that the United States did not trade arms for hostages.^®^
Many investigations were ensued, including those by the United States
Congress and the three-man, Reagan-appointed Tower Commission.
Neither could find any evidence that Reagan himself knew of the extent of
the multiple programs. In the end, fourteen administration officials were
charged with crimes, and eleven convicted, including then Secretary of
Defense. Reagan expressed regret regarding the situation during a
nationally televised.^^^ In the year 1992 all persons involved in this scandal
received pardon from President George H. W. Bush,^^^ who had been the
vice-president at the time of scandal.

Unlike Carter and Ford the presidency of Ronald Reagan, once it

was put under the microscope, would prove to be extremely controversial
in all its pardons. President Ronald Reagan pardoned 406 people during
his presidency i.e. 1981 - 1989; however, the recipients of these pardons

160. John Tower, The Tower Commission Report, New York, available at:
http://en.wikipedia.org/wiki/lran-Contra affair; see also http://www.amazon.conri/
Tower-Commission-Report. (Visited on May 07, 2011).
161. Ronald Reagan, (November 13, 1986). "Address to the Nation on the Iran Arms
and Contra Aid Controversy" (Ronald Reagan Presidential Foundation), available
at: http://www.reagan.utexas.edu, (Visited on May 07, 2011).
162. Speech about Iran Contra". PBS (March 4, 1987), available at:
http://www.pbs.org/wgbh/amex/reagon/filmmore/reference/primarv/irancontra.htm
1, (Visited on May 07, 2011).
163. United States Department of Justice, supra note 58,

70
were not revealed as public information.^®^ Questioning the use of
pardoning power misused by President Ronald Reagan, the great jurist of
United States Ruckman said that:
"This required immediate inquiry. How could a president
issue 406 pardons without telling the public? Reagan was able
to do this because he had noticed that it had never been put in
writing that a president had to write down and disclose whom
he pardoned. The pardons granted until 1893 were
handwritten and a copy was kept on file. In fact you can get
microfilm copies of Washington's, Jefferson's, Lincoln's, as
well as the rest of our great president's acts of clemency up
until 1893. And for pardons issued from 1894-1933
researchers can consult the Annual Reports of the Attorney
General; however, there has been no reporting of individual
acts of clemency since 1933. Despite this fact, most
Presidential administrations kept adequate records of the
pardons delivered during their terms. In fact the Department of
Justice has on-line records of Presidents Ford, Carter, Bush,
and Clinton. Reagan, however, decided that he wanted to
forego this process during his term. Reagan only wanted to
release certain helpful names of pardon recipients when it
would help him politically and, when it would not, he would
165
keep it undisclosed."
Out of these 406 pardons issued by President Ronald Reagan the
pardon granted to George Steinbrenner was one of the most controversial
pardons. In 1989, Ronald Reagan pardoned New York Yankee's owner
George Steinbrenner vjho happened to be a major Republican donor.^^^ In
1974 Mr. Steinbrenner was convicted on charges of conspiring to violate
federal election laws during President Richard Nixon's 1972 re-election
campaign. Steinbrenner donated money outside of the guidelines to be
used by the Nixon campaign as they pleased.

164. P.S. Ruckman, Jr., Keys to Clemency Reform: Knowledge, Transparency,

(JURIST} [on-line], available at: http://www.iurist.law.pitt.edu/parclonp5.htm.
(Visited on May 07, 2011).
165. Ibid.
166. Kristina Dell, and Rebecca Myers, The 10 Most Notorious Presidential Pardons,
available at: http://www.time.com/time/2007/presidential pardons/7.html. (Visited
on May 07, 2011).

71
Steinbrenner was supposedly aware of the fact that the money was not
going to regular election procedures because the money had been asked
for after large donations had already been made. Mr. Steinbrenner pled
guilty to the charges but claimed that an attorney of the American Ship
Building Company of which he was Chairman of the Board had made the
donations. Steinbrenner in applying for his pardon tried to redeem himself
by stating, "I fully accept that my actions or lack of actions were in fact
criminal acts"^^'' This admission coincided with the fact that Reagan
refused to pardon applicants unless they would admit to the crime. This
was one of the ways to keep up the 'tough on crime' image.
After going through the exercise of pardoning power during the
regime of President Ronald Reagan it can be concluded that Reagan
pardoned popular people to boost support and pardoned unpopular people
to keep the faith of those enlisted in the war on crime.^^® Reagan also
advanced the controversial usage of the power in the way that he did not
publicly disclose the people whom he pardoned. Overall, Reagan, like
Carter, did not take great advantage of the power, but he did continue to
pave the way for George Herbert Walker Bush and future Presidents to
wield the power in the political arena to aid their advancements and to
169
protect their administrations.
In January 1989, George Herbert Walker Bush became the 41 St
president of the United States.^''° Bush was the son of a Connecticut
Senator and was raised with Republican values and ideas. George Walker
Bush gained a secure knowledge of the process involved in the pardoning
arena while serving as Vice President to Ronald

167. Ibid.
168. In-Deptli Special: Presidents and the Power to Pardon, [on-line], available at:
http://www.cnn.com/SPECIALS/2001/pardons/pardon.history.html. (Visited on
May 07, 2011).
169. Ibid.
170. The Presidents of United States, supra note 158.

72
Reagan}^^ While serving as Reagan's Vice President Bush was able to
get an insider's view of what benefits the founding fathers allotted the
President with the inclusion of Article II, Section II of the Constitution. Bush
was a direct witness to the 406 pardons issued by Reagan.
As far as the view of President George Herbert Walker Bush
regarding the pardoning power is concerned, it was all together different
from the view of President Regan who pardoned 406 people during his two
terms, giving him an average of over two hundred pardons a term. This
number, although small in comparison to Presidents who served at the turn
of the century, but it was extremely excessive in relation to Bush's 77
pardons.^'^^
Bush reinvented the Republican Party in respect to the area of
pardons. This reinvention, however, was not truly unique. It did bring along
with it a lot of old party politics. The main part of this continuity came in the
pardons issued to wealthy political donors. This, however, was not a
character trait evident in only one party. This trait is noticeable in both
parties, especially in the latter half of the 20**^ century. A few more notable
examples can be seen in the two previous president's acts of clemency.
Jimmy Carter's pardon of Patty Hearst and Ronald Reagan's pardon of
George Steinbrenner would both be surrounded in controversy over the
large donations made to the specific party and presidential library.
This type of controversial pardon was the pardon issued to Cox's
son Edwin L Cox Jr., the scion of one of Texas' richest families. Jr. Cox
was sentenced in 1988, during Bush's second term as Vice President for
bank fraud as he pleaded guilty to this bank fraud committed by him while

171. Vice Presidents of the United States, available at: http://en.wikipedia.

org/wiki/List of United States Vice Presidents by time in office. (Visited on
May 07, 2011).
172. P.S. Ruckman, Jr., Federal Executive Clemency in United States, 1789-1995: A
Preliminary Report, available at: http://ednet.rvc.cc.il.us/PeterR/papers/paper3.h
trn, (Visited on May 07, 2011).

73
working as president of a Dallas bank by falsifying collateral on $78 million
in loans. Five years later in 1993 Bush pardoned Cox just two days before
he would leave office in a last minute gift of sorts.^'^^ Eleven months after
the pardon, oil magnate Edwin Cox, Sr. lived up to his billing with a pledge
to the library. His name is written in gold as a "benefactor," those whose
donations amount to between $100,000 to $250,000. He also served as a
library trustee.^'''* This figure of donation is still only an estimate, protected
by the Presidential Libraries Act.^^^ This Act allowed donations to be
unlimited in size, solicited from foreign governments and individuals, and
most importantly protected from disclosure.
Another controversial fact that goes against President George
Herbert Walker Bush is that out of the fourteen pardoned white collar
banking criminals Bush pardoned, four of them were from his home state
of Texas.^^^ This is strange because all of these crimes occurred during
the time frame of the Savings and Loan scandals that Bush and Reagan
publicly attacked and sought to punish while in office.^^^ Although it might
not be clear if any of these corrupt bankers persuaded Bush with a
contribution promise, it is evident that the pardon issued to Mr. Armand
Hammer \Nas surrounded with monetary innuendos.
Hammer was one of the first person who was pardoned by Bush in
178

the 1989. This pardon was again surrounded by monetary donations

and loads of controversy. In 1986 Armand Hammer publicly approached
Ronald Reagan for consideration for clemency. Hammer pledged $1
million to the planned Ronald Reagan Presidential Library in order to sway

173. United States Department of Justice, supra note 58.

174. Presidential Library, a Big Donation, supra note 59.
175. Presidential Libraries Act, 1955.
176. Supra note 58.
177. Former President Bush granted last-minute pardon to contributor's son, available
at: http://www.cnn.com. (Visited on May 07, 2011).
178. Supra note 58.
74
Reagan's position on his beiiajf. In 1987 Hammer boosted this pledge
to$1.3 million but was again left without any success.^''^ Reagan left the
office without pardoning Armand Hammer. Reagan refused to pardon
Hammer because Hammer never admitted guilt and therefore would not
accept a post admittance pardon. In the year 1989 Hammer contributed to
the Republican Party and the 8us/?-Quayle campaign. Hammer was the
president of Occidental Petroleum when reported by Newsday as
contributing $100,000 to the Republican Party and $100,000 to the Bush-
Quayle Inaugural Committee.^^° Soon after the elections Armand Hammer
approached George Herbert Walker Bush the newly elected president of
the United States for the grant of pardon and received the same. Although
it was clear that Hammer donated money directly to the Bush campaign,
but it was not clear that whether he donated to Bush's library. Hammer
might have donated some sum to the library but it was very clear that
because Reagan did not deliver a pardon therefore Hammer felt he didn't
have to deliver the promised $1.3 million.^^^
Another case of controversial pardon was the pardon of Aslam P.
Adam. Adam was a Pakistani drug trafficker who was convicted and
sentenced to 55 years for possession with the intent to distribute over $1
million worth of heroin. Adam had been apprehended after U.S. customs
had discovered over 500 grams of 72% pure heroin in a tubular package
addressed to Mr John at P.O. Box, Charlotte.^^^ The authorities moved in
and arrested Adam when he picked up the package. So far the story

179. Hammer's Diary, available at: http://www.edwardiavepstein. com. (Visited on May

07,2011).
180. "Inaugural Committee Lists $100,000 Lenders", Newsday, New York, 19"^
January, 1989, at 48, available at: http://www.newsdav.com. (Visited on May 07,
2011).
181. Stumbo Bella, "Hammer Pardon Turned on the Issue of Innocence", Los Angeles
Times, California, 28'" August 1989, at 1 & 16, available at: http://www.
Iatimes.com/. (Visited on May 07, 2011).
182. Nadler, George Bush's Heroin Connection, available at: http://www.
chuckbaldwinlive.com. (Visited on May 07, 2011).

75
paralleled the era, a harsh sentence for a harsh crime. But when Bush
issued this pardon he struck a blow against the war on drugs. Adam had
only served eight years of his 55 years imprisonment when Bush handed
183
down his reprieve.
On December 24, 1992 George Herbert Walker Bush pushed
through an extremely controversial set of pardons. Bush's Christmas Eve
pardons cleaned the slate of his and Reagan's possible punishment
through their involvement with the Iran Contra affair. These controversial
pardons were issued to Caspar W. Weinberger, Elliot Abrams, Duane R.
Clarhdge, Alan Fiers, Clair George, and Robert C. McFarlane. These five
individuals were the part of Reagan's administration and were involved in
the Iran Contra Scandal and Bush himself was working as Vice President
in this administration. This scandal, which started even before Reagan's
oath of office, had its roots in securing the release of American hostages in
Iran. These administrative officers arranged to make arms deals with Iran
to secure the release of the hostages, which would also provide monetary
payments to Nicaraguan right wing "contra" guerillas.
During Bush's one term, he elevated controversial, political pardons
to a new high. Bush's pardons reached out to drug dealers, convicted
terrorists, white-collar criminals, wealthy donators and of course to the past
administration. Bush's pardons moved the pardon power into a new
quagmire of endless non-responsibility. Basically, Bush had found a way to
pardon oneself. Bush's continuance of controversial pardons extended on
to the next president, William Jefferson Clinton.
In January 1993, William Jefferson Clinton became the 42"^^
President of the United States. Clinton, however, was a lot different from
the three men who had preceded him. Clinton, unlike Carter, Reagan and
Bush, was able to understand the totality of the pardon power. He was

183. United States Department of Justice, supra note 58.

184. Iran - Contra Affairs: American political scandals, supra note 159.
76
having clear idea that if the pardoning power is used correctly it shall be
like a big eraser to wipe away the mistakes one had made. Clinton was
also having the fortune to follow George Bush, who had retested the
grandeur of the power. Clinton, like other political officials, witnessed the
precedent that the Iran Contra pardons had set. The pardons set the stage
for an even more controversial act of clemency by the next president,
which just happened to be Bill Clinton.
Clinton stamped his name on the pardoning process by issuing
pardons in bulk and by pushing them through at the last minute. While the
number of overall pardons granted by Clinton was relatively equal to those
of recent presidents, no other president had issued such a large number of
unfiltered pardons at the last moment. Clinton's predecessors generally
granted pardons throughout their terms. Clinton, by contrast, granted no
pardons at all during his first four years as president, then he strangely
accelerated the pace. Over half of the 457 pardons issued by Clinton came
during his last month in office.^^^

President Clinton's abuse of the clemency power began with the

grants of clemency to 16 terrorists on August 11, 1999, who were part of
the FALN and Macheteros terrorist network.^^^ President Clinton did
nothing to answer the questions regarding these grants of clemency. The
grant of pardon to terrorists without explaining the reasons appears to be
highly unethical and controversial.
One of the biggest controversial pardons granted by Bill Clinton was
that of Marc Rich. In 1983 Rich and partner Pincus Green were indicted on
charges of tax evasion and illegal trading with Iran. It happened while they

185. Barbara Olson, Final Days: The Last Desperate Abuses of Power by the Clinton
White House 1-4 (Regnery Publishing Inc., Washington D.C., 1999), available at:
http://www.amazon.com ; http://www.findarticles.com, (Visited on May 07, 2011).
186. United States Department of Justice, Pardons and Commutations Granted by
President Bill Clinton, available at: http://www.usdol.gov, (Visited on May 07,
2011).

77
were in Switzerland. The pair failed to return to the U.S. following the
indictment, and was on the FBI's Most Wanted List for many years. On
January 20, 2001, hours before leaving office. President Bill Clinton
granted Rich a presidential pardon.^^^ Since Rich's former wife and mother
of his three children, socialite Denise Rich, had made large donations to
the Democratic Party and the Clinton Library during Clinton's time in office,
Clinton's critics alleged that Rich's pardon had been bought. Rich had also
made substantial donations to Israeli charitable foundations.^^^ Clinton
explained his decision by noting that similar situations were settled in civil,
not criminal court, and cited clemency pleas from Israeli government
officials, including Prime Minister Ehud Barak.^^^
Commenting upon the workings of President Clinton one of his peer
Ex-president Jimmy Carter said that "Mr. Clinton brought a new level of
disgrace to the office never before witnessed in the high office" Carter
added, "I don't think there is any doubt that some of the factors in his (Marc
Rich) pardon were attributable to his large gifts. In my opinion, that was
disgraceful."''^^
Another controversial pardon recipient during the term of President
Bill Clinton was the notorious Patty Hearst. Hearst's pardon was a
disturbing continuation of pardons that provided amnesty for people who
refused to admit guilt. Jimmy Carter had reduced Patricia Hearst's
sentence in 1979, stating, "Miss Hearst needs no further rehabilitation and
191
she is no risk to the community" but Carter refused to pardon Patty

187. United States Department of Justice, Pardons and Commutations Granted by

President William Jefferson Clinton, available at: http://www.iustfce.gov/pardon/
bushqra nts.htm, (Visited on May 07, 2011).
188. Controversy of Marc Rich's Pardon, available at: http://www.en.wikipedia.org/wik
i/Marc Rich. (Visited on May 07, 2011).
189. List of people pardoned by Bill Clinton, available at: http://www.en.wikipedia.org
/wiki. (Visited on May 07, 2011).
190. Donald Lambro, Carter Calls Clinton's Rich Pardon Disgraceful, available at:
http://www.books.google.com. (Visited on May 07, 2011).
191. Patricia Campbell Hearst, supra note 152.

78
Hearst. Carter's refusal to pardon Hearst arose from the popular interest
that surrounded Hearst's actions and her refusal to admit guilt. Clinton
however did not mind issuing this amnesty, which raised suspicion when
grouped with the rest of Clinton's pardons. The suspicion comes from the
very fact that no other president granted pardon to a person who refused
to confess his guilt.
After Clinton, George W. Bush became 43 president of the United
States on January 20, 2001 and was reelected on November 2004.^®^
193

During these two terms he issued 200 pardons. The pardon that
garnered unpopular attention is the most recent pardon issued by
President George W. Bush when he commuted the sentence of Lewis
"Scooter" Libby, a high-ranking official in his administration, on July 2,
194

2007. Libby, former Chief of Staff to Vice President Dick Cheney, was
sentenced to 30 months in prison for perjury, obstruction of justice and
lying to investigators probing the 2003 exposure of the name of CIA
operative Valerie Plame. Her husband, former Ambassador Joseph C.
Wilson, stated in various interviews and subsequent writings^^^ that
members of the Bush administration leaked his wife's identity in retaliation
to an article he wrote claiming that the administration had misrepresented
intelligence from his report to suggest that Iraq was seeking uranium and
weapons of mass destruction. Flame's name was leaked eight days after
the article appeared. Several Bush administration officials were
subpoenaed, and the press hovered over the case. In the end, Bush
192. Presidents of the United States-George W Bush, available at http://www.whiteh
ouse.gov. (Visited on May 07, 2011).
193. United States Department of Justice, Presidential Clemency Actions by
Administration: 1945 to Present, available at: http://www.iustice.aov/pardon/act
ions administration.htm; see also List of people pardoned by George W. Bush,
available at: http://en.wikipedla.org/wikl. (Visited on May 07, 2011).
194. President George W. Bush, Grant of Executive Clemency for Lewis Libby, July 2,
2007, available at: http://www.whitehouse.gov/news/releases, (Visited on May
07,2011).
195. Ambassador Joseph C. Wilson, Schema-Root, available at: http://www.scherna-
oot.org. (Visited on May 07, 2011).
79
commuted Libby's sentence although the fine, probation, and felony
conviction still remain in force.
So far as the present President Barak H. Obama is concerned has
not entered into the field of exercising this power. Although he already has
received 2192 applications for the grant of pardon and commutation but
these applications are pending alongwith other 3009 applications that were
196
already pending at the time of his joining as the President.
The use of the power to grant pardon in United States right from the
very beginning clarify that initially this power was used for the benefit of the
nation when the President granted pardons to the deserters in order to
bring them under the Constitution. But in the later stages this power was
misused by almost all Presidents either for the political purposes or the
some other considerations. In the very beginning of the chapter the
researcher pointed out the opinion that since the United States of America
is one of the major democratic countries hence there are less chances of
arbitrary, mala fide actions of state. But the manner in which this very
precious power to grant pardon has been exercised by the Presidents,
creates doubt in the mind of the researcher that whether this power shall
remain in our statutes or not?
On the basis of the above cases where the pardoning power has
been exercised by the different Presidents in the United States a few
questions arises in the mind of the researcher. The very first and obvious
question that arises over here is that what is the scope and extent of the
law of pardon? Whether the judiciary can interfere to check the misuse of
this power? Or is this power absolute? In order to find out the answer to
these questions it is necessary to go into the roots of law of pardon in this
country.
The law of pardon in United States is contained in the Constitution

196. United States Department of Justice, supra note 193.

80
itself which reads as under:
The President Shall have power to grant
reprieves and pardons for offences against the United States,
except in Cases of Impeachment.^^^

While dealing with this provision of the Constitution of United States

one of the Great jurists Willoughby in his book Constitution of America
called the pardoning power to be an executive function which can never be
under the control of any other authority. He writes:
But the power to pardon is an executive act and the sole
judge of the sufficiency of facts and of priority of the action is
the President. No other department has control over his
actions. The pardoning power is in derogation of the law and
the power of pardoning when conferred on the head of the
executive is an executive power and function. ^^^

The Supreme Court also made the same observation that just like
199

England the power to grant pardon is a broad discretion and is purely an

executive function which is outside the domain of judiciary.^°° Marshal
Chief Justice, after tracing the history of pardoning power held that:
the power to grant pardon is in essence an
executive function to be exercised by the head of the State
after taking into consideration various matters which may be
germane for consideration before a court of law inquiring into
the offence.^°^
m

In this case the Court further laid down that the power to grant
pardon is final and irrevocable as well. Whatsoever may be the reason for
the grant or refusal for pardon, the court refrained from going into the
merits by exercising the power to review. Although the court held that it

197. The United States Constitution, supra note 23 Art II, s 2 (i).
198. Westel Woodbury Willoughby, The Constitutional Law of United States 239
(Baker Voorhis and Company, Michigan, 1910).
199. The power to grant pardon was not subject to interference in England but in the
year 1984 in Council of Civil Sen/ice Union and ottiers v. Minister for Civil
Service, (1984) 3 All. E. R. 935, the House of Lords made it clear that Royal
Prerogative of mercy is also subject to judicial review.
200. Wilson, supra note 71.
201. Ibid.

81
can review this order of pardon only if it has been exercised by an authority
202
who has not been authorised by law to exercise this power. Hence the
Supreme Court dismissed the possibility of considering the legality or
priority of the pardoning power. Edward S. Corwin commenting upon this
judgment writes that:
By the theory of the common law, as summed up by
chief Justice l\/larshal in the early case of United States vs.
Wilson, pardon is like deed, to the validity of which delivery
and acceptance are essential; nor may it be known judicially,
being "the private through official act of the President, "unless
203
it be pleaded by its intended beneficiary
The power to grant pardon conferred on the President came into
direct conflict with the judiciary in Ex. Parte Grossman case wherein the
Supreme Court affirmed the President's power to grant reprieves and
pardons for all offences. The facts of the case are that Philip Grossman
was found guilty by the district court of having disobeyed a temporary
205

injunction, issued under the National Prohibition Enforcement Act,

forbidding illicit trafficking in liquors on certain premises. He was sentenced
by the district court to imprisonment for one year in the Chicago House of
corrections and to pay a fine of $ 1,000. This judgment was affirmed by the
circuit court of appeals as well. The President issued a pardon commuting
the sentence to the fine, with the condition that the fine be paid, which
Grossman did. Having been thereupon released from custody, Grossman
was again convicted by district court, upon the grounds that the pardon
was ineffectual. He then sought a writ of habeas corpus, directed to
Graham, the Superintendent of the House of Corrections. Honorable Chief
Justice Taft pronounced the unanimous opinion of the Court,
202. Ibid.
203. Edward Samuel Crowin, The President - Office and Powers 1787-1948; History
and analysis of practice and opinion 194 (New York University Press, New York,
1948).
204. Ex parte Grossman, supra note 81.
205. National Prohibition Enforcement Act, 1919.

82
rebutting the respondent's argument which stated that the President's
power can be extended only to offences against the United States and that
contempt of court was not such an offence. Criminal contempt, on the
contrary, in relation to the prohibition law is an "offence against the United
States," and pardonable by the President. "Offences against the United
States," in the pardon clause, include criminal contempts, and are
accorded with ordinary meanings of the words and are not inconsistent
with other parts of the Constitution where the term "offence" and the
narrower terms "crimes" and "criminal prosecutions" appear. The
contention that to admit the power of the President to pardon criminal
contempts would erode the independence of the judiciary and would
violate the principle of separation of the three departments of the
one
government, was considered and rejected.
The same question of the principle of separation of power and the
exercise of pardoning power came up for consideration before the
207

Supreme Court in the very famous Benz's case. Benz was Indicted for a
violation of the National Prohibition Act.^°® He entered a plea of guilty and
was sentenced to imprisonment for a term of ten months. While
undergoing imprisonment under this sentence, and before expiration of the
term of the federal District Court which had imposed the sentence, he filed
a petition asking that the sentence be modified. The court, over the
objection of the United States, passed an order reducing the term of
imprisonment from ten to six months. The government appealed, and the
court below, desiring the instruction of the Supreme Court, certified the
following question:
After a District Court of ttie United States tias imposed a
sentence of imprisonment upon a defendant in a criminal
case, and after tie lias sen/ed a part of tfie sentence, tias that
court, during the term in which it was imposed, power to
206. Ex parte Grossman, supra note 81.
207. United States v. Benz, (1930) 282 US 304.
208. National Prohibition Act (27 USCA), 1919.
83
 209
amend the sentence by shortening the term of imprisonment?
The contention of the government was that after the defendant has
been convicted and has entered upon service of a valid sentence, the
power of the court to alter the sentence, even at the same term, should
come to an end. In addition, some stress was put upon the fact that the
powers of the three departments of government are separated by the
Constitution, so that one of the departments may not exercise the powers
conferred upon either of the others; and it was suggested that from this
separation the implication fairly may be drawn that a reduction by the court
of a valid sentence after it has been partly served is, in effect, an invasion
of the power to pardon, including the power to commute, vested in the
executive by Article II, 2, (i), of the Constitution.
The Court while concluding the judgment held that we find nothing in
the suggestion that the action of the district court in reducing the
punishment after the prisoner had served a part of the imprisonment
originally imposed, was a usurpation of the pardoning power of the
executive. The judicial power and the executive power over sentences are
readily distinguishable. To render 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 judgment, but does not alter it qua judgment. To
reduce a sentence by amendment alters the terms of the judgment itself
and is a judicial act as much as the imposition of the sentence in the first
instance.^"
On the basis of the judgments passed by the Hon'ble Supreme
Court of United States of America in Grossman^^^ and Benz case^^^ it is
quite clear that neither the judiciary nor the executive can interfere in the

209. Benz, supra note 207.

210. /cf., at 311.
211. Ex parte Grossman, supra note 81.
212. Supra note 207.

84
field of each other as far as the pardoning power is concerned.
In Ex Parte Garland ^^^ two important precedents were re-
established by the Supreme Court. First, the President has full power to
pardon anyone of all crimes, either before or during or after persecution
and that the pardon clears the individuals of any consequences that may
have arisen from the action from which they were to be punished.
Secondly, laws may not be enacted that would punish someone, in the
broadest sense of the word, ex post facto. The facts of the case are that in
January of 1865 the Congress of the United States passed a law that
effectively debarred former members of the Confederate government by
requiring a loyalty oath be recited by any Federal court officer affirming that
the officer had never served in the Confederate government. Augustus Hill
Garland, an attorney and former Confederate Senator from Arkansas, had
previously received a pardon from President Andrew Johnson. Garland
came before the court and pleaded that the act of Congress was a bill of
attainder and an ex post facto law which unfairly punished him for the
crime he had been pardoned for and was therefore unconstitutional.
In a majority of 5-4 votes the Supreme Court observed that the law was
indeed a bill of attainder and an ex post facto law. The court held that
Garland was beyond the reach of punishment of any kind due to his prior
Presidential pardon. After taking into consideration the nature and scope of
this power the Hon'ble Court ruled that:
The power conferred on the President of the United States by
Article II, Sec 2, is unlimited and, with the exception of
impeachment, extends to every offence known to the law, and
may be exercised at any time after its commission. That power
is not subject to legislative control, and Congress can neither
limit the effect of the President's pardon nor exclude from its
exercise any class of offenders. The benign prerogative of
mercy reposed in him cannot be fettered by any legislative
restrictions.^^^

213. Ex parte Garland, 18 L. Ed. 366.

214. Ibid.

85
 After going through all these judgments it can be concluded that the
power to grant pardon is not subject to interference either by the judiciary
or by the legislature. This power is distinguishable from judicial or
legislative powers. While commenting upon these judgments Seervai
observed that:
Thus, in the United States the question has never been
asl<ed whether the President in exercising his power of pardon
has invaded the power of legislature or the power of the
judiciary. The question has always been whether the
legislature or judiciary has invaded the power of the President,
and it has been held that neither the legislature nor the
judiciary is competent to invade the power.^^^

The Supreme Court faced another question of pardon in the year

1926 and delivered a landmark judgment.^^^ The facts of the case are that
one Mr Perovich was convicted in Alaska of murder. The verdict being that
he was guilty of murder in the first degree. On September 15, 1905, he
was sentenced to be hanged and the judgment was affirmed by the
Supreme Court.^^^ Respites were granted from time to time, and on June
5, 1909, President Taft executed a document by which he purported to
commute the sentence to imprisonment for life. Thereupon Perovich was
transferred from jail in Alaska to a penitentiary in Washington and some
years later to one in Leavenworth, Kansas. In November, 1918, Perovich,
reciting that his sentence had been commuted to life imprisonment, applied
for a pardon and did the same thing again on December 10, 1921. On
February 20, 1925, he filed in the District Court for the District of Kansas
an application for a writ of habeas corpus on the ground that his removal
from jail to a penitentiary and the order of the President were without his
consent and without legal authority. The question before the court was that
'did the President have authority to commute the sentence of Perovich

215. H.M. Seervai, Constitutional Law of India 2097 (Universal Law Publishing Co.
Pvt. Ltd., Delhi, 4"^ edn., 2006).
216. Biddle, supra note 74.
217. Perovich v. United States, 205 U.S. 86.
86
from death to life imprisonment?'
Both sides agree that the act of the President was properly styled a
commutation of sentence, but the counsel of Perovich urge that when the
attempt is to commute a punishment into one of a different sort, it cannot
be done without the convict's consent. The Solicitor General presented a
very persuasive argument that in no case is such consent necessary to an
unconditional pardon and that it never had been adjudged necessary. In
this case the Court observed that:
We will not go into history, but we will say a word about
the principles of pardons in the law of the United States. A
pardon in our days is not a private act of grace from an
individual happening to possess power It is a part of the
Constitutional scheme. When granted it is the determination of
the ultimate authority that the public welfare will be better
served by inflicting less than what the judgment fixed.^^^

On the basis of this principle of public welfare the court further held
that "just as the original punishment would be imposed without regard to
the prisoner's consent and in the teeth of his will, whether he liked it or not,
the public welfare, not his consent determines what shall be done. So far
as a pardon legitimately cuts down a penalty it affects the judgment
imposing it. No one doubts that a reduction of the term of an imprisonment
or the amount of a fine would limit the sentence effectively on the one side
and on the other would leave the reduced term or fine valid and to be
enforced, and that the convict's consent is not required." ^^^
After going through the position of the law of pardon in this country it
can be concluded that the power to grant pardon remained outside the
domain of judicial review. There was no one except public who could have
asked the question for irrational, arbitrary exercise of this power. Hence
the sovereign possess an absolute power in the United State.

218. Biddle, supra note 74 at 486.

219. /cf., at 487.

87
C. Pardoning Power in some otiier countries:
The power to grant pardon to an offender has its roots in almost all
countries. It is being exercised by the sovereign of the State who is
generally the head of the state. This law is contained in the constitution of
the nation wherein this power has been conferred on the head of the State.
The law of pardon in some of the countries has been discussed hereunder:
a. In New Zealand:
In New Zealand, the power to grant pardon is considered as a royal
220

prerogative. This Royal prerogative or power of mercy is an important

constitutional safeguard in New Zealand's criminal justice system.^^^ In
New Zealand, this prerogative can be exercised by the Governor-General
being the Queen's representative and by virtue of this power he may grant
a pardon, reduce a sentence, or refer a case back to the courts for
222
reconsideration. But he will have to act while exercising this power only
223
on the advice of the Minister of Justice.
220. The Governor General Te Kawana Tianara o Aotearoa, available at:
http://www.gg.govt.nz/role/rovalprerogative.htm, (Visited on May 07, 2011).
221. Constitution Act, 1986, s. 3.
222. Crimes Act, 1961, s. 406 reads as under:
406 Prerogative of mercy:
Nothing in this Act shall affect the prerogative of mercy, but the Governor-
General in Council, on the consideration of any application for the exercise of the
mercy of the Crown having reference to the conviction of any person by any court
or to the sentence (other than a sentence fixed by law) passed on any person,
may at any time if he thinks fit, whether or not that person has appealed or had
the right to appeal against the conviction or sentence, either—
(a) refer the question of the conviction or sentence to the Court of Appeal
or, where the person was convicted or sentenced by a District Court
acting in its summary jurisdiction or under section 28F(4) of the District
Courts Act 1947, to the High Court, and the question so referred shall
then be heard and determined by the court to which it is referred as in the
case of an appeal by that person against conviction or sentence or both,
as the case may require; or
(b) if he desires the assistance of the Court of Appeal on any point arising
in the case with a view to the determination of the application, refer that
point to the Court of Appeal for its opinion thereon, and the court shall
consider the point so referred and furnish the Governor-General with its
opinion thereon accordingly.
223. Supra note 220.

88
 The legal effect of pardon Is to clear the person from all infamy, and
from all consequences of the offence for which it is granted, and from all
statutory or other disqualifications following upon conviction. It makes
him, as it were, a new man, so as to enable him in respect of the offence
for which he was convicted.
This power is an absolute one and is not subject to judicial scrutiny.
In De Freitas v. Benny^^^ Lord Diplock observed that "mercy is not the
subject of legal rights (but) begins where legal rights end." Lord Rosk/7 in
the G.C.H.Q. case^^^ while following the view of Lord Diplock observed
that "the exercise of the prerogative of mercy was inherently extra-legal in
nature and therefore not justiciable". Furthermore it cannot be denied that
the Crown's ability to pardon displays the necessary characteristics of a
true prerogative. But arguments against the same are also appreciable. In
Burty. Governor GeneraF^^ the counsel Cooke argued:
it would be inconsistent with the contemporary approach to
say that, merely because it is a pure and strict prerogative
power, its exercise or non-exercise must be immune from
curial challenge. There is nothing heterodox in asserting, as
counsel for the appellant to, that the rule of law requires that
challenge shall be permitted in so far as issues arise of a kind
with which the Courts are competent to deal it is more a
matter of a value or conceptual judgment as to the place in the
law and the effectiveness or otherwise of the prerogative of
mercy at the present day. In attempting such a judgment it
must be right to exclude any lingering thought that the
prerogative of mercy is no more than an arbitrary monarchial
right of grace and favour As developed it has become an
integral element in the criminal justice system, a constitutional

224. Crimes Act, supra note 222 s. 407 reads as under:

407 Effect of free pardon:
Where any person convicted of any offence is granted a free pardon by Her
Majesty, or by the Governor-General in the exercise of any powers vested in him
in that behalf, that person shall be deemed never to have committed that offence:
provided that the granting of a free pardon shall not affect anything lawfully done
or the consequences of anything unlawfully done before it is granted
225. 1976 AC 239.
226. 1985 A.C. 374.
227. 1992(3)NZLR672.

89
 safeguard against mistakes.^^^

Despite this valuable argument the counsel could not get relief from
the court. Even at present the fact remains that in New Zealand the
prerogative is not to be touched by the Courts under judicial review, yet the
concept is one that is winning favour amongst the Judges. It is possible
that in a few years there will be mechanisms like judicial review to control
the use of the prerogative, but it is very unlikely that it should ever become
229

part of a statute.
b. In Canada:
In Canada, two types of mercy powers are being exercised by two
different authorities. The very first one is the power to grant pardon and
whereas the second one is the clemency. Law of pardon is governed by
230

the Criminal Record Act and the law of clemency is governed by the
Criminal Code.^^^
The very first mercy power i.e. the power to grant pardon can be
exercised by the Parole Board of Canada and it can only be granted to a
convicted Canadian citizen, who already have undergone some specific
232
fixed period of imprisonment in jail. The convicted person will have to
233

file an application before the Parole Board of Canada. If the Board is

satisfied then it may grant pardon to the convict. A pardon keeps a judicial
record of a conviction separate and apart from other criminal records, and
gives law abiding citizens an opportunity to reintegrate into the Canadian
society. The Criminal Records Act removes all information about the
conviction
228. /cf., atfor
678which an individual received the pardon. Federal agencies
and 681.
229. M. Travis, The Prerogative of Mercy in New Zealand, available at: http://hom
epaqes.ihuq.co.nz/~ttpbst/me/writing/mercv.htm. (Visited on May 07, 2011).
230. Criminal Records Act, 1985 (R.S., 1985, c. C-47).
231. Criminal Code, 1985 (R.S.C. 1985, c. C-46), s. 748 and s. 749.
232. Supra note 230 s. 4.
233. Id., s. 3.
234. Id., s. 5.

90
cannot give out information about the conviction without approval from the

Minister of Public Safety Canada.^^^

The pardon does not, however, erase the fact that an individual was
convicted of a crime. The criminal record is not erased, but it is kept
separate and apart from other (non-pardoned) criminal records. A pardon
removes disqualifications caused by a criminal conviction, such as the
ability to contract with the federal government, or eligibility for Canadian
citizenship. He can live in the society as if he never committed a crime. But
in exceptional cases where the law itself permits, the record of the
conviction may be made public.
The second type of mercy power that can be exercised in Canada is
the power to grant clemency. This power to grant clemency has been
conferred by the Criminal Code of Canada on the Governor-General of
Canada and the Governor in Council (the federal cabinet) under the
Royal Prerogative of Mercy.^"^^ For clemency as well the applications

235. Id., s. 6 (2).

236. Criminal Code, supra note 231 s. 748 reads as under:
748. (1) To whom pardon may be granted - Her Majesty may extend the royal
mercy to a person who is sentenced to imprisonment under the authority of an
Act of Parliament, even if the person is imprisoned for failure to pay money to
another person.
(2) Free or conditional pardon - The Governor in Council may grant a free pardon
or a conditional pardon to any person who has been convicted of an offence.
(3) Effect of free pardon - Where the Governor in Council grants a free pardon to
a person, that person shall be deemed thereafter never to have committed the
offence in respect of which the pardon is granted.
(4) Punishment for subsequent offence not affected - No free pardon or
conditional pardon prevents or mitigates the punishment to which the person
might otherwise be lawfully sentenced on a subsequent conviction for an offence
other than that for which the pardon was granted.
748.1 (1) Remission by Governor in Council -The Governor in Council may order
the remission, in whole or in part, of a fine or forfeiture imposed under an Act of
Parliament, whoever the person may be to whom it is payable or however it may
be recoverable.
(2) Terms of remission - An order for remission under subsection (1) may include
the remission of costs incurred in the proceedings, but no costs to which a
private prosecutor is entitled shall be remitted. 1995, c. 22, s. 6.
749. Royal prerogative -Nothing in this Act in any manner limits or affects Her
Majesty's royal prerogative of mercy.

91
are required to be made to the National Parole Board, as in pardons. The
clemency includes the power to grant pardon, commutation of a sentence,
or the remission of all or part of the sentence, a respite from the sentence
(for a medical condition) or a relief from a prohibition (e.g. to allow
someone to drive that has been prohibited from driving).^^^
To conclude it can be said that the power to grant pardon in Canada
is being exercised in two cases. Firstly it is granted to the convicted
persons who already have undergone punishment. It helps the convict to
settle in the society without any stigma attached to the conviction and he
can start living in the society like an ordinary citizen. Whereas in case of
second field, this power can be exercised to grant pardon, commutation,
reprieve remission etc.
0. In France:
In France, pardons are granted by the President, who, ultimately, is
238

the sole judge of the propriety of the measure. It is a prerogative of the

President which is directly inherited from that of the Kings of France. The
convicted person may send a request for pardon to the President of the
Republic. The prosecutor of the court that pronounced the verdict reports
on the case, and the case goes to the Ministry of Justice's directorate of
239
criminal affairs and pardons for further consideration.
If granted, the decree of pardon may spare the applicant from
serving the balance of his or her sentence, or commute the sentence to a
lesser one. It does not suppress the right for the victim of the crime to
obtain compensation for the damages it suffered, and does not erase the
condemnation from the criminal record.^'*^

237. Ibid.
238. Constitution of France, 1958, Art. 17 reads as under:
Article 17. The President of the Republic is vested with the power to grant
individual pardons.
239. Available at: http://en.wikipedia.org/wiki/Pardon. (Visited on May 07, 2011).
240. Ibid.

92
d. In Sri Lanka:
In Sri Lanka, the power to grant pardon has been conferred on the
President. Unlike Canada he can exercise this power in all cases. The
nationality of the offender is not a bar for obtaining pardon as it is available
to all. The President is also empowered to grant pardon to an accomplice if
he becomes an approver and gives information for the conviction of
principle offenders. While exercising this power, he may order a pardon,
respite or remission. In certain cases he may act on the report of the trial
court and the advice of the Attorney-General as well.
e. In Spain:
The "derecho de gracia" (right of grace) or "indulto" (pardon) is

241. The power of pardon has been vested in the President of Sri Lanka by Art. 34 of
The Constitution of Democratic Socialist Republic of Sri Lanka, 1978 which reads
as under:
"(1) The President may in the case of any offender convicted of any offence in
any court within the Republic of Sri Lanka -
(a) grant a pardon, either free or subject to lawful conditions ;
(b) grant any respite, either indefinite for such period as the President
may think fit, of the execution of any sentence passed on such offender;
(c) substitute a less severe form of punishment for any punishment
imposed on such offender; or
(d) remit the whole or any part of any punishment imposed or of any
penalty or forfeiture othenwise due to the Republic on account of such
offence:
Provided that where any offender shall have been condemned to suffer
death by the sentence of any court, the President shall cause a report to
be made to him by the Judge who tried the case and shall forward such
report to the Attorney- General with instructions that after the Attorney
General has advised thereon, the report shall be sent together with the
Attorney-General's advice to the Minister in charge of the subject of
Justice, who shall forward the report with his recommendation to the
President.
(2) The President may in the case of any person who is or has become subject to
any disqualification specified in paragraph (d), (e), (f), (g), or (h) of Article 89 or
subparagraph (g) of paragraph (1) of Article 91 -
(a) grant a pardon, either free or subject to lawful conditions, or
(b) reduce the period of such disqualification.
(3) When any offence has been committed for which the offender may be
tried within the Republic of Sri Lanka, the President may grant a pardon
to any accomplice in such offence who shall give such information as
shall lead to the conviction of the principal offender or of any one of such
principal offenders, if more than one."

93
acknowledged by the Spanish Constitution as a privilege of the King of
242

Spain. The Spanish Constitution defines it as a renounce on the State's

part of its own punitive power on behalf of an individual, founded on
reasons of equity or public interest. The Constitution subjects royal
pardons to the Law and forbids general pardons, so they have to be
granted individually. Royal pardon can be granted for the general offense
or the accessory offenses alone; if it is granted for the general offense, the
accessory ones it implies are also pardoned, with the exception of
punishments involving political rights (i.e., removal of the right to run for a
public office as a result of a sentence), which have to be explicitly
mentioned in the pardon decree if they are going to be pardoned.
f. In Hong Kong:
In Hong Kong, prior to the handover of Hong Kong to China in 1997,
the power of pardon was a royal prerogative of mercy of the monarch of
the United Kingdom. Since the handover, the Chief Executive of Hong
Kong now exercises the power to grant pardons and commute penalties
Basic Law of Hong Kong.^"*"*
g. In Italy:
In Italy, the power to grant pardon has been conferred on the
245
President of the Republic by the Italian Constitution. The pardon

242. Constitution of Spain, 1978, Art. 62 reads as under:

It is incumbent upon the King: a) i) to exercise the right of clemency
pursuant to a law, which cannot authorize general pardons;...
243. Available at: http://en.wikipedia.org/wiki/Pardon. (Visited on May 07, 2011).
244. The Basic Law of the Hong Kong Special Administrative Region of the People's
Republic of China, 1990 Art. 48 reads as under:
Article 48: The Chief Executive of the Hong Kong Special Administrative Region
shall exercise the following powers and functions:
(1) (12) To pardon persons convicted of criminal offences or
commute their penalties; and
245. Costituzione della Repubblica Italiana (Constitution of the Italian Republic), 1947,
Article 87 reads as under:
Art. 87 Presidential Duties:
1) 11) The President may grant pardons and commute punishments.

94
granted by the President may remove the punishment altogether or
change its form. Unless the decree of pardon states otherwise, the pardon
does not remove any incidental effects of a criminal conviction, such as a
mention in a certificate of conduct.^^^
The pardon granted by the President operates only if it is
countersigned by the concerned minister.^"^^ That means the Presidential
pardon is subject to the assent of the concerned minister. If no assent is
given by the concerned minister then the orders of the President granting
pardon shall become void.
D. Pardoning Power in India:
In India, the roots of the pardoning power may also be found in the
family. With the development of the society the law of pardon also
developed frequently and systematically especially as a corrective
measure. One of the oldest methods of corrective measures for the
criminals may be traced to the time when there was no King or the head of
the society. This method was known as Prayaschita or expiation. This
Prayaschita, during early days when there was no King etc., was being
performed by the wrongdoer himself. In fact the person who committed a
crime or sin called pataka^^^ was used to approach God for the
forgiveness if he felt guilty. In other words initially it was a method of self
purification exercised by the offender himself.

246. Available at: http://en.wikipedia.org/wiki/Parclon. (Visited on May 07, 2011).

247. Constitution of the Italian Republic, supra note 245 Art. 89 reads as under:
Art. 89 Countersignature:
(1) Acts of the president are void unless countersigned by the ministers who are
responsible for and submitting it.
248. Dr. Pandurang Vaman Kane, History of Dharamsastra (Ancient and Mediaeval
Religious and Civil Law) Vol. IV at 1 (Bhandarkar Oriental Research Institute,
Poona, 1973, defined the term pataka as under:
Sin (pataka) is a word that belongs to the terminology of religion rather
than that of Ethics it is an act which is regarded as a willful rebellion
against or disobedience of some law supposed to be laid down by God or
revelation; it is opposed to the will of God manifested in an authoritative
work or at least failure to abide by the regulations contained therein.

95
 So far as the origin of this Prayaschita is concerned the exact time is
not easily traceable. Dr. Sarkar while dealing with the origin of this term
observed that:
'This Prayaschita or expiation is the oldest method of
corrective measures for criminals. So many references to
expiation in different Vedas are mentioned and show that the
nucleus of the institution of Prayaschita conceived and
followed from a very early time of Indian Society. The genesis
of the institution might be sought in the prayers to the Rig
Vedic Gods in general and Varuna in particular, for gifts and
blessings and also for forgiveness and mercy in cases in
transgression was committed. No human or social institution
can be said to have any clearly definable origin specially when
249
it is found to have prevailed from time immemorial.
Thus it is clear that it is not an easy task to find out the exact time of
the origin of this expiation. But the philosophy or object behind it appears
to be the conversion of a sinner into a normal good human being. Even the
literal meaning of Prayaschita is also the same. This term Prayaschita is
constituted of two words i.e. "prayata" and "chita." "Prayata" means pure
and "chita" means collected. Accordingly Prayaschita means such actions
as tapas, gifts, sacrifices etc. whereby a man becomes purified and
destroys his accumulated sins, just as clothes are made clean by the
employment of salt, moist heat, putting in boiling water on a fire, and
washing in water.^^"

Therefore the Prayaschita was considered as a remover of sin. But

the important question that arises over here is that how this Prayaschita
was being performed or what was the method or measure required to be
followed for the observation of Prayaschita. The answer to this question is
that the principle measures for Prayaschita as contained in Vedas that
were also recited in Gautama Sutras, include the austerity, sacrifices.

249. Dr. U.C. Sarkar, The Dharamsutras on The Socio-Criminological Aspects of

Prayaschita 28( Vishveshvaranand Vedic Research Institute, Hoshiyarpur, 1958).
250. /cf.,at60.

96
fasting and gifts.^^^ There are so many other methods that can be followed
for this purpose. As per Gautama:
A sinner also can be purified by living on milk alone,
eating only vegetables, fruits, barley gruel, prepared of a
handful of grain, gold clarified butter and drinking some juice.
There are other means of purification also based on other
kinds of austerities like continence, speaking the truth, bathing
in morning, moon and evening (Trisavana), standing in wet
clothes, sleeping on the ground and abstaining from food. The
different means of penances could be followed alternatively for
the purpose of expiation though Kricchara; Atkricchara and
Chandrayana might be observed for all offence in general.^^^

These methods remained in force even after the emergence of

statehood. Thereafter the observation of this Prayaschita was not only the
subject matter of the sweet will of the wrongdoer but the sovereign or a
ParishacF^^ also imposed Prayaschita for the purpose of the purification of
the wrongdoer. The use of this power to impose Prayaschita is evident
from these words:
A Prayaschita laid down by a Parishad or King and
completed by the sinner washes him of all the sins, which
are literally burnt by the powers of the three fires of the
members of the Parishad as a wet cloth is dried by the sun
254
and wind.
Therefore it is clear that the power to grant pardon had been
exercised by the King himself for the betterment of the person concerned.
With the passage of the time the law was codified. Before the era of
codification of law the power to grant pardon was being exercised as a

251. Gautama, Nyaya Sutras, Chapter XIX, para-11, available at: http:/
/www.hinduwebsite.com/sacredscripts/hincluism/clharma/qautama2.asp. (Visited
on May 07, 2011).
252. Id., Chapters XIX, para 13 and 15.
253. The term Parlshada has been defined in the Angarsa Amriti, U-IV, 5 as an
assembly of Four or Three Brahmins learned in the Vedas and performing
sacrifice in fires regularly.
254. Parasara, VIII, 35 quoted by N.K. Dutta, in Origin and Development of Criminal
Justice in India 41 (Deep and Deep Publications, New Delhi, 1990).

97
corrective measure. The basic purpose or objective remained same
throughout this period of time.
Such powers of mercy were also exercised in India by the Mughal
255

Emperors and rulers as well. In the early years of the East India
Company's operation, mercy in their courts remained limited to the
prerogative powers of the British King-Emperor. Subsequently some
powers of mercy also appear to have been granted vide royal charter to
the Governor General in Council of Fort William and the Governors in
Council of the Bombay and Madras Presidencies.^^^ As Muslim criminal
law largely prevailed in the mofussil territories, a scheme of pardon
consistent to that law prevailed although the Governor General in council
also had the power to pardon and commute sentences after the
257

establishment of the Sadar Nizamat Adalat in 1772. Eventually with the

merger of the moffusil and presidency systems, statutory clemency powers
were provided for in the Indian Penal Code and the Code of Criminal
Procedure that were enacted in 1860 and 1861 respectively. During this
British period so many laws were framed wherein the law of pardon was
contained. Even after the independence the power to grant pardon was
kept alive in the Constitution of India.^^^ The origin and development of the
provisions of various statutes which deal with the pardoning power during
the course of British domain in India and its inclusion in the Constitution of
India has been discussed hereunder.
The Constitution of India came into force in the year 1950. Before
this the law of pardoning power was the same as it was in the United
Kingdom. The very simple reason for this was that India was under the
255. Bashir Ahmed, Administration of Justice in Medieval India, (Historical Researcli
Institute, Aligarh 1941).
256. MP Jain, Outlines of Indian Legal History 50 and 337 (Wadhwa and Co, Nagpur,
5th edn., 2005).
257. /d., at 134-35.
258. The Constitution of India, supra note 6 Arts. 72 and 161.

98
British rule. The statutory provisions in various statutes provided for two
types of pardoning Power. Firstly, the power was conferred on the
executive and secondly, the appellate court was also empowered to
suspend a sentence pending appeal. The appellate court was bound to
record its reasons in writing while suspending a sentence but no such
requirement was prescribed for the executives. All these provisions are
discussed hereinafter.
As mentioned earlier the very first law containing the law of pardon
that came into force in the year 1860, was being made by the Britishers for
259

our country was the Penal Code. This code is applicable even today.
The law of pardon originally contained in this Code read as under:
Commutation of sentence of death:
In every case in which sentence of death shall have
been passed, the Government of India or Government of the
place, within which the offender shall have been sentenced
may, without the consent of the offender, commute the
punishment for any other punishment provided by the
Code.^''
Commutation of sentence of imprisonment for life:
In every case in which sentence of transportation of life
shall have been passed, the Government of India or
Government of the place, within which the offender shall have
been sentenced may, without the consent of the offender,
commute the punishment for imprisonment of either
description for a term not exceeding fourteen years.^^^
This code conferred the power to commute a sentence on two
authorities i.e. firstly, the Government of India and secondly the
Government of the place. These authorities were empowered to exercise
this power only in two cases i.e. in cases of a sentence of death or
sentence of imprisonment for life passed by the court of law. It also
provided that while exercising this power there is no need to take the

259. Indian Penal Code, 1860 (Act XLV of 1860).

260. Id., s. 54.
261. Id., s. 55.

99
consent of the person concerned. It will be the sweet will of the authority to
exercise the power if he deems fit. The only restriction on this power was
imposed by Section 55. It provided that the power to commute a sentence
of imprisonment for life shall be exercised only in cases of prisoners who
already have undergone at least fourteen years of imprisonment.
Earlier the power contained in this code was conferred on the Government
of India or Government of the place. Even at present this power is being
exercised by the same authorities, but the title of the authorities had been
changed by amendment. In fact till today this provision faced two
amendments. The very first amendment that had been made in the year
1937 in these Sections were that the phrases "the Government of India or
Government of the place" were substituted by the words "the Central
Government or the Provincial Government of the province."^®^ In the year
1950 another amendment was made whereby the phrases 'the Central
Government or the Provincial Government of the province within which the
offender shall have been sentenced' were substituted by 'the appropriate
Government.'^^^ With the help of the same amendment a new provision
Section 55-A was inserted and it defined the term appropriate
govemment.^^

Therefore this provision provided only for the exercise of a restricted

power to commute a sentence. The two authorities could exercise this
power only in two cases i.e. in case of death sentence or imprisonment for
life. These authorities could not exercise this power in cases of other
lesser punishments. Even at present the law is same.
After one year from the enactment of the Penal Code another code,
265
containing procedure for criminal matters, came into force. The Section

262. Government of India (Adaption of Indian Laws) Order, 1937.

263. Adaption of Laws Order, 1950 (w.e.f. 26.01.1950).
264. For the definition of appropriate Government see, infra Cliapter IV.
265 The Code of Criminal Procedure, 1861, (Act XXV of 1861).

100
54 of this code provided for tiie power to remit a sentence. The power
under this provision was confined only for the purpose of remission of
punishments. It read as under:
Power of Government to remit to remit penalties:
When any person has been sentenced to punishment for an
offence, the Governor General of India in Council, or the local
Government, may, at any time, without conditions, or
upon any condition which such person shall accept, remit the
whole or any part of the punishment to which he shall have
been sentenced^^^

This provision was contained in Chapter III dealing with "Preliminary

Rules." This chapter included among other things the passing of sentence,
the place of confinement of persons convicted and the power of remission
of sentences by the Governor General. This section conferred upon the
executives i.e. the Governor General in Council and the Local Government
the power to grant remission. The power could be exercised with or without
conditions. But if conditions were imposed, the same were required to be
accepted as well.
The most important fact about this power was that both of the
authorities were empowered to exercise this power to remit a sentence in
two cases. First of all they were empowered to exercise the power to remit
a sentence in cases where the sentence has already been passed by the
court of law. Secondly, they were also empowered to exercise this power
in cases where the sentence has not been passed. Thus an extra ordinary
power was conferred by the code on these two executives.
This code also contained the power to suspend a sentence. The
appellate court was given this power to suspend sentence pending
appeals and release the convict under Sec 421, Chapter XXX that
contained this power in the following words:
In any case in which an appeal is allowed, the Appellate
Court may, pending the appeal, order that the sentences be

266. Id., s. 54.

101
 suspended, and if the appellant be in confinement for an
offence for an offence which is bailable, may order that he be
released on bail^^^

Therefore during this period of time the power to exercise the

pardoning power was conferred on two authorities i.e. firstly the executives
and secondly the appellate judicial body. The judiciary was empowered to
exercise the power to suspend a sentence during the pendency of the
appeal and the executives were empowered to exercise the power to
commute or remit a sentence passed by a court of law.
In the year 1872 the Criminal Procedure Code, 1872 came into
force. The Section 322, Chapter XXIII, dealing with the power of the
executive to remit punishment, conferred the same power upon the
executives which was contained in the old code. The only change brought
by this code was that in the earlier code the power to remit sentence could
have been exercised in all cases where a person was sentenced or where
he shall have been sentenced. But in the new code this power was cut
short to cases where the person has already been punished. The new
code provided:
When any person has been sentenced to punishment
for an offence, the Governor General of India in Council, or
the Local Government, may at any time, without conditions or
upon any conditions which the person sentenced accepts,
remit the whole or any part of the punishment to which he has
been sentenced....^^^

This code like the old code also contained the power of suspension
of sentence pending appeals and release of the convicted person. But this
time there were a few changes introduced in the new code such as the
provision for the release on bail during the pendency of the appeal was
provided as a matter of right in cases of punishment for bailable offences

267. /d, S.421.

268. The Code of Criminal Procedure, 1872 (Act X of 1872), s. 322.

102
This provision was contained in Chapter XX, which reads as under:
In any case in which an appeal is allowed, the Appellate
Court may, pending the appeal, order that the sentence be
suspended, and, if the appellant be in confinement for an
offence which is bailable, may order that he be released on
bail.
The period during which the sentence is suspended
shall be omitted in reckoning the completion of the
punishment'''

The Criminal Procedure Code was re-enacted in the year 1882 but
this time the power to suspend or remit sentences was contained in a
separate Chapter viz. Chapter XXIX headed "Suspensions, Remissions
and commutations of sentences". The relevant provision was dealing with
the power to remit sentence was Section 401 which reads as under:
When any person has been sentenced to punishment
for an offence, the Governor General in Council, or the Local
Government, may at any time, without conditions, or upon any
conditions, which the person sentenced accepts, suspend the
execution of his sentence, or remit the whole or any part of the
punishment to which he has been sentenced

Nothing herein contained shall be deemed to interfere

with the right of Her Majesty to grant pardons, reprieves,
270
respites, or remissions of punishments.
This code of 1882 also contained the same provision for the
remission of the sentence with or without conditions as it was contained in
the previous two codes. The additional new power conferred on the
executives by this code was that of suspension of sentence. The other
change made in this code was that it specifically provided for the non-
interference in the power of Her Majesty to grant pardons retrieves,
respites, or remissions of punishments.
The new code of 1882 also provided for the power of the

269. /c/.,s. 281.

270. The Code of Criminal Procedure, 1882 (Act X of 1882), s. 401.

103
appellate courts as to suspension of sentences pending appeals. The
Section 426, Chapter XXXI contained this power of the court in the
following words:
Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in writing
order that the execution of the sentence or order appealed
against be suspended and, if he is in confinement, that he be
released on bail or on his own bond.
The power conferred by this section on an Appellate
Court may be exercised also by the High Court in the case of
any appeal by a convicted person to a Court subordinate
thereto.
When the appellant is ultimately sentenced to
imprisonment, penal servitude or transportation, the time
during which he is so released shall be excluded in computing
271
the term for which he is so sentenced.
This Section itself explains that this provision also saw a few
changes in comparison to the previous codes. This time the power was to
be exercised by the High Court being appellate court in case of the appeal
filed by the convicted person whereas there was no such condition in the
old codes. This time the court was asked to record reasons for granting
suspension of sentence, although it was not necessary in the previous
codes.
In the year 1898 a new Criminal Procedure Code was enacted which
remained in force till 31^' March, 1974. It also conferred the pardoning
powers on the court and the executives. The power conferred by this code
on the executives reads as under:
Power to suspend or remit sentence:
When any person has been sentenced to punishment for an
offence, the Government of India or Government of the place
may at any time without conditions or upon any condition
which the person sentenced accepts, suspends the execution
of his sentence or remit the whole or any part of the
272
punishment to which he has been sentenced
271. /cf., s. 426.
272. The Code of Criminal Procedure, 1898 (Act V of 1898) s. 401 (1).

104
 (5) Nothing herein contained shall be deemed to interfere
with the right of His Majesty or of the Government of India
when such right is delegated to it to grant pardons, reprieves,
respites or remissions of punishment. ^^
Power to commute sentence: The Government of India or
Government of the place may, without the consent of the
person sentenced, commute any one of the following
sentences for any other mentioned after it-
death, transportation rigorous imprisonment for a
term not exceeding that to which he might have been
sentenced, simple imprisonment for a like term, fine.
Sentence of death: The power conferred by Section 401
and 402 upon the State Government in cases of sentences of
275
death, also be exercised by the Central Government.
This code also brought some changes. In this Code the power had
been conferred on the Government of India or Government of the place.
Whereas under the previous Code this power was conferred upon the
Governor General in Council and the local Government. This time in
addition to the power to remit sentence another power to commute a
sentence was also conferred on the authorities mentioned hereinabove.
The corresponding section of appellate courts which empowered the
courts having power to entertain appeals to exercise the power to suspend
the punishment was contained in Section 426, Chapter XXXI.^^® But there
was no change made in this section. It was the same provision
reintroduced without any addition or alteration that was contained in the
977

previous Code of 1882.

After going through the power to grant remission, commutation etc.
in the various Criminal Procedure Codes enacted between the years 1861

273. Id., s. 401 (5).

274. Id., s. 402(1).
275. Id., s. 402A.
276. Id., s. 426(1).
277. The Code of Criminal Procedure, 1882, supra note 270 s. 426.

105
to 1898 it can be concluded that in the code of 1861 the power given to the
Governor General was to remit punishment to which an accused person
was sentenced and the power of the appellate court was to suspend the
sentence pending the appeal in non bailable offence cases. Even in the
Code of 1872 also the power of the Governor General and the Local
Government was that of remission of the punishment whereas the
appellate court was to exercise the power to suspend a sentence pending
the appeal. In Section 401 of the Act of 1882 the legislature chose to use
the words "suspension of execution of the sentence or remit the whole or
any part of punishment". The power conferred by this section was
discretionary and there was nothing to indicate that this power was in any
way limited. But the power given to the appellate court was differently
worded from what was in the previous Codes. Now it was made
compulsory for the courts to record reasons emphasizing that the two
powers, the one exercised by the executives and the other exercised by
the judiciary were two separate powers, no doubt, operating for the same
purpose but exercised on different considerations and in different
circumstances. The requirement of recording reasons does not necessarily
means that the courts did not exercise their power judicially previous to the
Act of 1882.

The Act of 1898 once again provided for the same power of
suspension of execution of sentences or remission of punishments in
Section 401 and the Section 426 conferred upon the appellate courts the
same power. Here also the words "for reasons to be recorded in writing"
were repeated showing that the legislature wanted to make it clear about
the essential difference in the nature of the exercise of the power conferred
on the executive and on the judiciary.
During the British rule one more law that also contained the law of
pardon came into force in the year 1935. This was the Government of India
Act, 1935. It empowered the Governor-General to exercise this power and

106
the law of pardon was contained in Section 295 of the Act which reads as
under:
Provision as to deatii sentence:
(1). Where any person has been sentenced to death in a
province, the Governor-General in his discretion shall have all
such powers of suspension, remission or commutation of
sentence as were vested in the Governor -General in Council
immediately before the commencement of Part III of this Act,
but save as aforesaid no authority in India outside a province
shall have any power to suspend, remit or commute the
sentence of any person convicted in the province.
Provided that nothing in this sub section affects any
powers of any officer of His Majesty's forces to suspend, remit
or commute the sentence passed by a court martial.
(2). Nothing in this section shall derogate from the right of His
Majesty, or of the Governor -General, if any such right is
delegated to him by His Majesty, to grant pardons, reprieves,
respites or remissions of punishment. ^^

All the Acts that came into force before the Government of India Act,
1935 devoid the power of the Crown or the power of Governor General as
a delegate of the Crown, and it cannot be said that the Indian legislature,
whatever its powers, could affect the King's prerogative and therefore any
provision in the Criminal Procedure Code was wholly impuissant as to
King's prerogative of pardons, whereas the provisions such as Section
279 280

401(5) was by way of abundant caution. Section 295 of the Act was
no doubt a special provision as to the power of the executive to suspend,
remit or commute a sentence of death. Sub section (1) of this Section
provided that the powers of the Governor General in his discretion were
the same as were vested in the Governor General in Council immediately
before the commencement of this Act but save as that no authority in India
outside a province had any power to suspend remit or commute the
sentence of any person convicted in a province. By virtue of Sub-section

278. Government of India Act, 1935, s. 295.

279. The Code of Criminal Procedure, 1898, supra note 272 s. 401(5).
280. H. M. Edwards v. Attorney General, 1930 AC 124 at 136: A! R 1930 PC 120.

107
(2) of Section 295 of this Act the power of the King or of the Governor
General as a delegate to grant suspension, remission or commutations
remained unaffected by the introduction of a federal system with division of
281

subjects between the centre and the provinces. Thus it can be conclude
that under the Government of India Act the Governor-General in his
discretion had the power to remit etc. the sentence of death and the
Governors of the provinces had the same power in a province but the
power of the King and of Governor-General as a delegate remained
unaffected by the first Sub- section of the Section. Thus upto the coming
into force of the Constitution of India the exercise of the King's prerogative
remained unaffected and it was plenary, unfettered and exercisable as
hitherto.
In the year 1947 India became an independent state and the
process for a constitution was started. The discussions on the nature of
mercy provisions in the forthcoming Constitution also took place in the
Constituent Assembly. In response to the questionnaire on the salient
features of the Constitution circulated by B.N. Rau, the Constitutional
Advisor to the President in March 1947, Dr. Shyama Prasad Mookerjee
referred to the President's power 'to pardon and to commute or remit
punishment'.^^^ Another member of the Union Committee, K.T. Shah, sent
a note with 'general directives' - effectively a draft constitution.^^^ This
included 'pardon convicted criminals' as part of the powers of the Head of
the State in Clause 15. However curiously the memorandum and draft
clauses circulated by B.N. Rau on 30 May 1947 made no specific mention
of the mercy powers of the President.^^"* After a few meetings of the Union
Constitution Committee, however, broad powers of mercy were included in

281. K. M. Nanawati, supra note 40 at 128.

282. B Shiva Rao et.al. (ed), The Framing of Indian Constitution - Select Documents
(Indian Institute of Public administration, New Delhi, 1968).
283. Ibid.
284. Id., at 368.
108
the recommendations of the Committee on the Principles of the Union
Constitution on 4*^ July 1947. This proposed power read as under:
Functions of the President.-(1)....
(2) (b)The right of pardon and power to commute or remit
punistiment imposed by any court exercising criminal
jurisdiction shall be vested in the President, but such power of
commutation or remission may also be conferred by law on
other authorities.^^^

This clause came up for discussion before the Constituent Assembly

on 31®* July 1947 when a lengthy discussion took place on how such
powers should be exercised in the proposed "federal" Indian State. Mr
B.L Mitter ar\6 some other representatives from the princely states moved
an amendment which would have had the effect of preserving the power of
pardon which vested in the ruler of princely states.^®® As a matter of fact
this amendment was proposed by concerns of rulers of Indian
princely/native states who did not wish to lose their powers of mercy in the
new federal India although they did not object to the concurrent powers.
Gopalaswami Ayyangar also moved an amendment to substitute
clause 7 (2) (b) and explained the purpose of the same in the following
words:
The principle behind my amendment is that the
President will have the power to grant pardon etc. only in
cases of offences against the Federal Laws. The power to
pardon offences against the ordinary criminal law and against
laws made by the Provinces or the States will vest in the
287
heads of the Provinces or the States.
N. Gopalaswami Ayyangar, speaking for the Union Committee also
discussed the need for this presidential power:
/ think, Sir, the house will agree that, when we are
setting up a Head of the federation and calling him the
President, one of the powers that should almost

285. Memorandum on the Indian Constitution, Part- IV, Clause - 7 (2) (b).
286. Constituent Assembly Debates, Vol. IV at 956.
287. /cf.,at958.

109
 automatically be vested in him is the power of pardon. Now, is
the power of pardon going to be unlimited in its character, or
are we going to give him only limited power of pardon? He is
not like a hereditary monarch in a position to derive his powers
of pardon from any theory on a royal prerogative and so on. If
he exercises the power of pardon, we must vest the authority
for it to the Constitution or to some Federal Law.^^^

As a compromise, the Committee moved an amendment limiting ttie

mercy powers of the President to only federal law jurisdiction. On this a
practical problem arose. As a matter of fact the entire penal law was under
provincial domain and thus the mercy power would not even cover murder
cases. To remedy this situation, M. Ananthasayanam Ayyangar suggested
an amendment in the following words:
Where any person has been sentenced to death in a
province, the President shall have all such powers of
suspension, remission or commutation of sentences as are
289
vested in the Governor of the province.
While moving this amendment he said that the president "has
concurrent jurisdiction. It is open to the Governor himself to grant a pardon.
In cases where the pardon is granted by the Governor, the President has
290
no right to revoke that pardon and then convict him."
The Assembly adopted the amendment. Thus the adopted
memorandum of the union gave the President concurrent powers of
suspension, remission or commutation of sentence of death in a province.
The provision with minor amendments and renumbered as clause 53 (2)
(b) also featured in the Draft Constitution prepared by B.N. Rau and
291

presented to the Assembly in October 1947. Taking over from Rau,

initially the Drafting Committee on 24 January 1948 opined that the mercy
powers in cases of death sentences should not be vested concurrently in

288. Id., at 957.

289. Id., at 960.
290. Ibid.
291. B Shiva Rao, supra note 282.
110
the President and the Governor. However after further Drafts and
meetings, eventually on lO''' February 1948 the Drafting Committee
changed its stance. Now the provision was once again renumbered and
the power to grant pardon was proposed to be conferred on the President
and the Governor of each State. The proposed provision dealing with the
power of President to grant pardon read as under:
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 under 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) of this Article
shall affect the power conferred by law on any officer of the
Armed Forces of India to suspend, remit or commute a
sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of the clause (1) of this Article
shall affect the power to suspend, remit or commute a
sentence of death exercisable by the Governor or ruler of the
292
State under any law for the time being in force.
The other provision contained in the draft Constitution that proposed
to confer the power to grant pardon on the Governor of each and every
State read as under:
Power of Governor to grant pardon etc. and to suspend,
remit or commute sentences in certain cases:
The governor of a state shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to
suspend remit or commute the sentence of any person
convicted of any offence against any law relating to a matter
with respect to which the legislature of state has power to
293
make laws.
292. Draft Constitution, Art. 59.
293. /d., Art. 141.

Ill
 Both of these provisions dealing with the law of pardon were
discussed by the Constituent Assembly. The discussion in the Assembly
on 31 July 1947 about protecting the rights of the rulers of the princely
states seemed far removed when the mercy provisions of the Draft
Constitution came up for discussion in the Assembly on 29'^ December
1948. Mr. Tajamul Hussain suggested an amendment. He even attempted
to remove the concurrent powers of mercy in death cases provided to
Governors. In fact he was not in favour of conferring the power to grant
pardon on the Governors of the States. It was suggested by him that
294

clause (3) of Art 59 be deleted. According to him the conferment of

similar powers on the President and the Governors of the states may lead
to situation of divided loyalty on the issue of pardon and since the
President of India is the supreme authority of the federation he alone
should be vested with the power of pardon. He quoted that in United
States of America (presently United States) it is the President who grants
pardon in all the states. Similarly in England also, the pardon is granted
only by the King on the advice of his Home Minister. It was suggested by
Mr. Tajamul Hussain that to have a strong centre it was necessary that the
power of pardon should not be conferred on Governors of the States.
Whereas Mr. R. K Sidhwa opposed the amendment proposed by Mr
295
Tajamul Hussain. He said that the Governors are also responsible to the
legislature of the States and they can always have more knowledge about
their respective provinces. Thereafter this question of amendment was put
to Dr B. R. Ambedkar and he tried to explain the scheme embodied in the
Article 59 of the Draft Constitution in the following words:
The power of commutation of sentence for offences
enacted by the federal laws is vested in the President of the
Union. The power to commute the sentence for offences
enacted by the State legislature is vested in the Governors of

294. Constituent Assembly Debates, supra note 286 Vol. VII at 1118.
295. / d , at 1119.

112
 the States. In case of sentence of death, whether it is inflicted
under any law passed by parliament or by the law of the
States, the power is vested in both, the President as well as
296
the Governor of the state concerned.
Dr Ambedkar was completely against the amendment proposed by
Mr Tajamul Hussain. In the words of Ambedkar.
the Drafting Committee has not seen any very
strong arguments for taking away the power from the
Governor After all, the offence is committed in that particular
locality. The Home Minister who would be advising the
Governor on a mercy petition from an offender sentenced to
death would be in a better position to advise the Governor
having regard to his intimate knowledge of the circumstances
of the case and the situation prevailing in that area. It was
therefore felt desirable that no harm will be done if the power
which the Governor now enjoys is left with him. There is,
however, a safeguard provided. Supposing in the case of a
sentence of death the mercy petition is rejected, it is always
open, under the provisions of this article, for the offender to
approach the President with another mercy petition and try his
luckthere.^^'^

Thus Ambedkar categorically pointed out that the Governor, advised

by his Home Minister, would really be in a better position to decide on
these matters of exercise of clemency, since the State Home Minister
would have more intimate knowledge of the circumstances of the case and
the situation prevailing in the area. Ambedkar characterized the clemency
power of the President as safeguard in cases where a condemned man's
mercy petition to the Governor was rejected.
On September 17, 1949, another important amendment of the Art.
298

59 of the Draft Constitution was suggested by Mr T T Khshmachari.

The main reason behind this proposed amendment was that the article as
passed by the assembly did not give full effect to the scheme expounded

296. /d., at 1119-20.

297. /cf., at 1120.
298. Id., Vol. X at 389.

113
by Dr. Ambedkar, because of condition in clause (b) which provided that
the President would exercise clemency powers "in all cases where
punishment or sentence is for an offence under any law relating to a matter
with respect to which Parliament has, and the legislature of the State in
299
which the offence is committed has not, power to make laws".
Mr. T. T. Krishmachari urged that the clause would have meant that
in respect of offences against laws in the concurrent list, where both
Parliament and the State legislature had power to make laws, the powers
of clemency would be exercised by the governor or Ruler of the State and
not by the President. Now, the plan of the Constitution in respect of the
exercise of executive authority in relation to matters in the concurrent list
was that such executive power would remain with the State Governments,
but the Union Government would assume executive power where such
assumption was provided for by any federal law. It was felt that in matters
where the Union Government assumed executive power the power of
clemency should be exercised by the President and not by the Governor or
ruler of the State. Therefore, in place of the original clause (b) of Art.59 of
the Draft Constitution Mr T. T. Krishmachari moved an amendment
suggesting a redraft of the clause:
(b) in all cases where the punishment or the
sentence is for an offence under any law relating to a matter to
which the executive power of the Union extends.^^^

While considering the amendment proposed by Mr. T. T.

Krishmachari, Mr K. Santhanam proposed an amendment in this proposed
amendment of Mr T. T. Krishmachari. Mr Santhanam suggested that in
the proposed sub - clause (b) of clause (1) of Article 59, after the words
301
"offence under any law" the words "made by Parliament" be Inserted,

299. Ibid.
300. Ibid.
301. Ibid.

114
 302
but the amendment was Negatived and ultimately the amendment
303

proposed by Mr. T. T. Krishmachari was adopted by the Constituent

Assembly.
Finally the amendment proposed Mr. Tajamul Hussain was rejected
and the Constituent Assembly adopted the article on December 29, 1948
and the Article so adopted became Art 72 of the Constitution of India.
The other proposed provision dealing with the law of pardon i.e. Art
141 of the Draft Constitution was discussed by the Assembly on 17
October 1947. The Assembly accepted the only amendment proposed by
Shri T. T. Krishnamachari. In place of "with respect to which the legislature
of the state has power to make laws" the Constituent Assembly inserted
the words "to which the executive power of the state extends." It
became a part of the constitution when it was adopted by the Assembly on
f* June 1949.^°^
Finally, the Constitution of India came into force on January 26,
1950 and provided for the power to grant pardon to be exercised by the
President and the Governor of a State concerned. At this point of time,
when the Constitution of India came into force, a few other legislations
such as the Penal Code and the Code of Criminal Procedure of 1898
were also in force alongwith the Constitution. Both of these legislations
were also occupying the same field of the pardoning power. After a period
of twenty three years i.e. in the year 1973 a new code of criminal
procedure was enacted by the Parliament which replaced the old code of
1898. It also provided for the exercise of the pardoning power by different
authorities. The power to grant remission and suspension and

302. /c/., at 391.

303. Ibid.
304. Id, at 392.
305. /cf., Vol VIII at 488.
306. Indian Penal Code, supra note 259.
307. Code of Criminal Procedure, 1898, supra note 272.

115
commutation of sentence was conferred on the executives whereas the
judiciary was authorised to exercise the power of the suspension of
sentence. The power of executive to suspend or remit sentence under the
new code reads as under:
Power to suspend or remit sentences.
(1) When any person has been sentenced to punishment for
an offence, the appropriate Government may, at any time,
without conditions or upon any conditions that the person
sentenced accepts, suspend the execution of his sentence or
remit the whole or any part of the punishment to which he has
been sentenced. J ' '

The power to commute a sentence conferred on the executives by

this code reads as under:
Power to commute sentence: Appropriate Government may,
without the consent of the person^ sentenced, commute-
(a) a sentence of death, for any other punishment provided
the Indian Penal Code, (45 of 1860);
(b) a sentence of imprisonment for life, for punishment for a
term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might have
been sentenced, or for fine;
309
(d) a sentence of simple imprisonment, for fine.
Both of these provisions conferred the power to grant remission,
commutation and suspension of sentence on the 'appropriate
government'^^° whereas the old Code of Criminal Procedure, 1898
originally conferred these powers on the Government of India or
Government of the place.^^^
This Section 432 of the new code corresponds to Section 401 of the
old code of 1898. Section 401 (1) of the Code of Criminal Procedure, 1898
corresponds to the provisions of Section 432 (1) of the Code of Criminal

308. The Code of Criminal Procedure, 1973, supra note 34 s. 432.

309. Id., s. 433.
310. For definition see, infra Chapter IV.
311. The Code of Criminal Procedure, 1898, supra note 272 ss. 401 and 402.

116
Procedure, 1973 as this provision was inserted witli only one change or
amendment.^^^ The sub-sections (2) to (4) correspond to sub - section (2)
to (4) of the old section. The sub-section (5) alongwith its proviso
corresponds to sub-section (6) with the proviso of the old section. The sub-
section (6) corresponds to sub-section (4A) of the old section. Whereas the
sub - section (7) is new. It defines the expression "appropriate
Government. In the old code the expression "appropriate Government"
was defined in Section 402 (3). Thus the sub-section (7) corresponds to
sub-section (3) of Section 402 of the old code. The only change made
therein is the words "State Government was replaced by "The Government
of the State within which the offender is sentenced or the said order is
passed."
Beside these clerical changes the new code did not provide for any
major change in the power to be exercise under the procedure code.^^^
However in the year 1978, a new section 433-A was inserted in the Code
of Criminal Procedure, 1973. It reads as under:
Restriction on powers of remission commutation in
certain cases: Notwithstanding anytiiing contained in
Section 432, wtiere a sentence of imprisonment for life is
imposed on conviction of a person for an offence for wfiicti
death is one of the punishment provided by law, or where
a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for life,
such person shall not be released from prison unless he had
314

served at least fourteen years of imprisonment.

The main reason for the insertion of this section was to restrict the
312. The words 'the Government of India or Government of the place' contained in the
code of 1898 were substituted by the words 'the Central Government or the
Provincial Government of the province' in the year 1937 by Government of India
(Adaption of Indian Laws) Order, 1937 and 'the Central Government or the
Provincial Government of the province' were substituted by the words 'the
'appropriate Government' in the year 1950 by Adaption of Laws Order, 1950
(w.e.f. 26.01.1950).
313. See, infra Chapter IV.
314. The Code of Criminal Procedure, 1973, supra note 34 s. 433A.

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power contained in Sections 432 and 433 of the Code. Section 433-A
basically provided that the power of remission and commutation shall be
exercised only in those cases where prisoner has already undergone
imprisonment for 14 years.^^^ The restriction contained in this section was
not there in the old act as it is a new section. Even the new act was not
having this provision at the time of its enactment as this section was
inserted in the new code in the year 1978 by the Criminal Law Amendment
Act, 1978.^^®
In fact the Joint Committee on the Indian Penal Code (Amendment)
Bill, 1972, had suggested the insertion of a proviso to Section 57 of the
Indian Penal Code, 1860, to the effect that a person who has been
sentenced to death and whose death sentence has been commuted into
that of life imprisonment and persons who have been sentenced to life
imprisonment for a capital offence should undergo actual imprisonment of
fourteen years in jail. Since the insertion of this provision into the Penal
Code was not proper as it is the Criminal Procedure Code where it should
have been inserted, a new Section 433-A was inserted in the new Code.
The other power contained in this code that conferred the power to
suspend a sentence on the court of law reads as under:
Suspension of sentence pending tiie appeai; reiease of
appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate
Court may, for reasons to be recorded by it in writing, order
that the execution of the sentence or order appealed against
be suspended and, also, if he is in confinement, that he be
released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court
may be exercised also by the High Court in the case of an
appeal by convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which
he is convicted that he intends to present an appeal, the Court
shall,—

315. See, Infra Chapter IV.

316. Criminal Law amendment Act, 1978 (Act 45 of 1978) s. 32 (w. e. f. 18. 12.1978).

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 (i) where such person, being on bail, is sentenced to
imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been
convicted is a bailable one, and he is on bail, order that the
convicted person be released on bail unless there are special
reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders of
the Appellate Court under sub-section (1), and the sentence of
imprisonment shall, so long as he is so released on bail, be
deemed to be suspended. "^^^

The present Section 389 corresponds to Section 426 of the old

Code.^^^ The sub-sections (1) and (2) corresponds to the sub-sections (1)
and (2) of the old code. The two provisos contained in this section were not
there in (he old Code as they were inserted in the new code in the year
2006. The sub-section (3) corresponds to sub-section (2) (a) of the old
Code.
The Section 389 (1) of the Code of Criminal Procedure, 1973
clothed the appellate Court with the power to suspend the sentence during
the pendency of the appeal. The same power contained in Section 426 (1)
of the Code of Criminal Procedure, 1898 was once again conferred on the
appellate court by the Code of Criminal Procedure, 1973. The change
made in this new section is that it confers the power on the trial court to
release on bail a person convicted for bailable offences and also for a few
non-bailable offences. But in the old sub-section the trial court was
empowered to release the person convicted for bailable offences only.^^^
In India, beside these powers to grant pardon that were conferred by
the different statutes on the executives and the judiciary, a couple of more
similar powers are in existence since 1872 and 1898. Both of these powers
remained the subject matter of the court only from the

317. The Code of Criminal Procedure, 1973, supra note 34 s. 389.

318. The Code of Criminal Procedure, 1898, supra note 272 s. 426.
319. See, infra Chapter IV.

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very beginning. The very first power that originated in the year 1872 is that
of power to grant pardon to an accomplice who becomes approver. It
320

found the place in the Code of Criminal procedure, 1872. It read as

under:
Magistrate may tender pardon to accomplice: The
Magistrate of the District, any Magistrate of the 1st class
inquiring into the case, or with the sanction of the Magistrate
of the District, any Magistrate duly empowered to commit to
the Court of Session, may, after recording his reason for so
doing, tender a pardon to anyone or more of the persons
supposed to have been directly or indirectly concerned in or
privy to any offence specified in column seven of the fourth
schedule hereto annexed as triable exclusively by the Court of
Session, on condition of his or their making a full, true and fair
disclosure of the whole of the circumstances, within his or their
knowledge, relative to the crime committed, and every other
321
person concerned in the perpetration thereof....
This code also empowered the High court and the Court of Session
to direct tender of pardon in the following words:
Higti Court or Court of Sessions may direct tender of
pardon. The High Court as a Court of revision, and the Court
of Session after committal but before the commencement of a
trial, may, with the view of obtaining on the trial the evidence
of any person or persons supposed to have been directly or
indirectly concerned in or privy to any such offence, instruct
the, committing Magistrate to tender a pardon on the same
condition to such person or persons.
The Court of Session, in like manner and on the same
condition, may at any time before judgment is passed, with
the view of obtaining on the trial the evidence of any person or
persons supposed to have been directly or indirectly
concerned in or privy to any such offence, tender a pardon to
322
such person or persons.
Therefore the Magistrate of District and the Magistrate of 1^' Class
were empowered to exercise the tender of pardon to an accomplice.

320. The Code of Criminal Procedure, 1872, supra note 268 ss. 347 and 348.
321. Id., s. 347.
322. Id., s. 348.

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The High Court and the Court of Session were not having this power.
However they were empowered to direct the tender of pardon. The same
power to tender pardon to an accomplice was once again conferred on the
323

same authorities without any change in the code of 1882. But in the
code of 1898 a few changes were introduced. Like the previous codes
this code also conferred the power to tender pardon on all Magistrates. But
the High Court and Court of Session were once again kept out from the
business of the tender of such pardon, but they were certainly having the
power to direct tender of pardon.
This code of 1898 was repealed by the code of 1973. In this new
code the power to tender pardon was contained in Section 306 that
corresponds to the section 337 of the old code of 1898. This section has
been incorporated in the new code with a few changes. The law has been
imposed in the following manner:
1. In the previous code the law in Section 337(1) provided that the
power to tender pardon can be exercised for 'offences punishable
with imprisonment which may extend to ten years.' But in the new
code in place of these 'offences punishable with imprisonment which
may extend to seven years or with more
sever sentence' were included. This change i.e. 'with more sever
sentence' was necessary in order to remove the ambiguity.
This question of ambiguity also came up for consideration before the
325

Supreme Court. In this case the objection was raised by the accused
that the pardon cannot be granted in cases of more sever sentence as the
Section 337(1) has fixed the maximum punishment for offences in which
the pardon can be tendered. The accused contended that one of the
offence charged against him was punishable with transportation for life or
323. The Code of Criminal Procedure, 1882, supra note 270.
324. The Code of Criminal Procedure, 1898, supra note 272 ss. 337 and 338.
325. State ofAndhra Pradesh v. Cheemalapati Ganeshwara Rao, AIR 1963 SC 1850.

121
imprisonment of either description for ten years and fine.^^® In this case the
Supreme Court accepted that there is an ambiguity in this section but the
Court completely refused to solve it. Although the Court held that since
other offences charged against the accused are falling within the ambit of
327
the section hence the exercise of power of pardon was proper.
2. Another change made in the new code was that it included within the
ambit of this section all the offences which are triable exclusively by
the Court of Special Judge appointed under Criminal Law
Amendment Act, 1952.
3. In the new code the power to tender pardon was exclusively
conferred on the Judicial Magistrate irrespective of the stage of the
case. In the old code this power was conferred on every
Magistrate.
4. In the old code it was mandatory for the Magistrate to furnish a copy
of the record if applied by the accused. But the accused was to pay
for the same as per the provisions applicable. The exemption from
payment was to be recorded by the Magistrate with reasons.
Whereas in the new code this provision of payment was omitted and
now the Magistrate is to furnish a copy of the record free of cost if
applied by the accused.
5. Under the old Code all the matters wherein pardon has been
tendered were required to be committed to the Court of Sessions.
But in the new Code the matter may be decided by the Court of
Session or the Court of Special Judge or even by the Chief Judicial
Magistrate himself.
Beside these changes no other alteration was made in the new code
and moreover the objective of the code of 1872 was carried forward

326. Indian Penal Code, supra note 259 s. 409.

327. Cheemalapati Ganeshwara Rao, supra note 325 at 1869.

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without any change. The most appreciable act done by this new code
was that of snatching the powers of the quasi-judicial bodies like the
Magistrate of District. It is better if the judicial bodies itself exercise the
power to grant pardon to an accomplice. The reason behind the same is
that since it is the prerogative of the judiciary to punish a criminal for
offences where pardon can be granted to an accomplice hence it is more
appropriate to confer the power to grant pardon to an accomplice on the
judiciary itself.
In India, the second power concerning pardon conferred on the
judiciary is the power to release an offender on probation. The law of
probation received statutory recognition for the very first time during British
period in the year 1898, when the code of criminal procedure came into
329

force. The Section 562 empowered the Court with a discretionary power
to release the first offender on probation of good conduct, who was
punished with not more than two years imprisonment for certain offences
under the Indian Penal Code, 1860. Later, the Children Act, 1908 also
empowered the Court to release certain offenders on probation of good
conduct. Similar provision existed in the Children Act, 1960 which now
stands repealed consequent to the passing of the Juvenile Justice Act,
1986. In the year 1923, the ambit of law of probation was extended further
330

by insertion of Sub-Section (1-A) in Section 562. This provision provided

for unconditional release of the first offender after admonition in certain
cases.
In the year 1931, the Government of India prepared a draft of
Probation of offenders Bill and circulated it to the then Provincial
Governments for their views. But unfortunately the Bill could not be

328. The basic objective of this power to bring the criminals to justice remained
unaffected; for details see, infra Chapter IV.
329. The Code of Criminal Procedure, 1898, supra note 272 s. 562.
330. Inserted by Act No. 37 of 1923.

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 331

proceeded further. In 1951 the United Nations Economic and Social

council recommended the adoption and extension of the probation system
by all of the countries as a major instrument of policy in the field of crime
and treatment of offenders. Thereafter a Probation Conference was held at
Bombay in 1952 on the advice of the United Nation. Thereafter, in the year
332

1957 a committee suggested for a central law on probation. Consequent

to its report the Indian Parliament passed a comprehensive law, called
333

Probation of Offenders Act. Later in the year 1974, when the new code
of criminal procedure replaced the old code and the law of probation also
334
found place in this new code.
Thus in India the power to grant pardon that started with the self
purification by the offender himself became the subject matter of the
executives and the court. This power is not only a part of the Constitution
but some other statutes also contain the power to grant pardon. All of
these statutes worked together right from their enactment. Although these
laws faced a few changes, but till today not even a single law came to an
end.
10. Conclusion:
It is evident from the foregoing study that the power to grant pardon
is basically an extraordinary power in the hand of the sovereign. Its effect
is twofold. Firstly it absolves the offender completely from the punishment
and secondly it removes the legal bars or disqualifications that would have
applied to a convicted person. This power of pardon is different from the
power to grant amnesty. In case of amnesty the offenders may be
exonerated immediately after the commission of the offence without a trial
331. R.A. Kulkami, Probation of Offenders in India 5 (Sangali Law Publisher, Pune,
1971,).
332. All India Jail Manual Committee Report, 1957.
333. Probation of Offenders Act, 1958 (Act 20 of 1958).
334. The Code of Criminal Procedure, 1973, supra note 34 s. 360.

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but pardon can be exercise only after an offender has been punished by
the court of law.
The foregoing study reveals that the sovereign may also exercise
some other similar pardoning powers such as reprieve, respite, remission,
commutation of sentence. But in case of exercise of these powers the
sovereign provides some relief to the convict with regard to punishment
only but the stigma attached to the conviction does not come to an end.
The power to grant pardon, reprieve, respite, remission and
commutation of sentence fall within the domain of the executive who is
generally the head of the state. Almost all democratic countries are making
some use of such powers. Since the powers are of great effect therefore
its misuse is inevitable. The example of misuse of this power lies in United
States where this power has been abused by different Presidents on so
many different occasions. But this does not mean that the power shall be
snatched from the executives as it serves a lot of purposes. The basic
purpose or objective of it is the public welfare and it is also useful to correct
the possible judicial error.
Besides this power a couple of similar powers to grant pardon are
conferred on the court of law as well. They can exercise the same either
for pardoning the approver in order to punish the main accused persons or
to permit the first offenders to rehabilitate peacefully once again in the
society by probation.
To conclude it can be said that the power to grant pardon exercised
by the sovereign for different purposes developed alongwith the society.
Although it serves great purposes but the apprehension of misuse of the
same is a factor that needs attention.

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