Clemency Power of President

- Leniency, moderation of severity, mercy

- मा शोभती उस भज
ु ंग को िजसके पास गरल हो ,
उसको या जो दं तह न, वषर हत, वनीत, सरल हो ।
सच पछ
ू ो तो शर म ह बसती है द ि त वनय क ,
सं धवचन स पू य उसीका िजसमे शि त वजय क ।
सहनशीलता, मा, दया को तभी पज
ू ता जग है ,
बल का दप चमकता उसके पीछे जब जगमग है ।
रामधार संह दनकर (शि त और मा)

Questions​:
1. What is the need to give clemency power to the Executive?
2. What forms of clemency may be granted by the President?
3. When can the President grant clemency?
4. How shall the clemency power be exercised by the President?
5. How far is the clemency power of the President subject to judicial review?

Need​:
1. Relief from undue harshness of law/ evident mistakes in the operation/enforcement of
criminal law - E.g., consider the 35th Report of the Law Commission of India, Report on
Capital Punishment pp. 317 - 18: the courts are tied down by the evidence placed before
it; there might be facts which are not placed before the court, facts which were placed
before the court but not in a proper manner, or facts which wwere discovered after the
passing of the sentence
2. Convict is rehabilitated and the society has nothing to gain from his incarceration.
3. Inflicting a lenient punishment would better serve public interest - See Seervai’s
enunciation on the same: “If the enforcement of a sentence is likely to lead to
 bloodshed and revolution, the executive might well pause before exposing the State to
such peril.

Article 72. -

(1) ​The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of ​any person ​convicted ​of any
offence​ —

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer
of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court
Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a
sentence of death exercisable by the Governor of a State under any law for the time being in
force.

Forms of Clemency that may be granted by the President​:

1. Pardon: The effect of a 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. The effect of a free pardon is… to remove
from the subject of the pardon “all pains, penalties and punishments whatsoever that
from the said conviction may ensue, but not to eliminate him from the conviction itself.
 2. Reprieve: A temporary suspension of the punishment fixed by law (usually the death
penalty). It is generally extended to enable the opportunity for the prisoner to find a
means for reducing the sentence imposed. (e.g., to get a pardon or commutation)
3. Respite: A postponement of sentence, which is to be executed at a future time. It is like
a break, breathing time from the sentence.
4. Remission: Reduction of amount of punishment without changing the character of
punishment. E.g., sentence of imprisonment of one year may be remitted to six months
5. Commutation: Changing a punishment to one of a different type than originally
awarded. E.g., changing death penalty to life imprisonment, or life imprisonment to
simple or rigorous imprisonment of a specified term.

Exercise of Clemency Power:

1. The President is bound by the aid and advice of CoM​: ​Maru Ram v. Union of India
(1981)​: President’s power under Art 72 is an executive power. Being an executive
power, it is to be exercised on the aid and advice of the CoM.
2. Manner of consideration of the petition is to be decided by the President​: The
proceeding before the President is executive in character. It is for the petitioner to
submit, with the petition, all necessary information requisite for disposal of the petition.
There is no right to insist on an oral hearing. Manner of consideration of the petition lies
at the discretion of the President. - ​Kehar Singh v. Union of India (1989)
3. President is entitled to scrutinise evidence: The President is entitled to go into the
merits of the case notwithstanding that it has been judicially concluded by the
consideration given to it by the Court. It is open to the President in the exercise of the
power vested in him by Article 72 to scrutinise the evidence on record and come to a
conclusion different from that recorded by the Court regarding the guilt of, and the
sentence imposed on the accused. ​In doing so, the President does not amend or modify
or supersede the judicial record. The judicial record remains intact and undisturbed.
The President acts in a wholly different plane.​ - ​Kehar Singh v Union of India (1989)