PARDONING CAPACITY OF PRESIDENT vis-à-vis

GOVERNOR

SUBMITTED BY

PRATIK BASISTHA

Batch 2020-25, DIVISION – D , BA.LLB

PNR: 20010223046

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

March, 2022

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 CERTIFICATE

The project titled “pardoning capacity of president vis-à-vis governor” submitted to the
Symbiosis Law School, NOIDA for Law of Constitutional Law II as part of Internal
Assessment is based on my original work carried out under the guidance of Prof. Ahmed Ali and
Assistant Prof. Shipra Sinha from February 2022 to June 2021. The Research work has not
been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has
been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate: Pratik Basistha

Date: 12 March 2022

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 INDEX

PARTICULAR PAGE NO.

Introduction 4
Research Methodology 4
Research Question 4
Scope and Limitation 4
Chapters 5
Conclusion 8

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INTRODUCTION

The Constitution of India being the longest written constitution is widely known for its basic
feature of quasi federalism. It means that constitution always maintains a division of power as
well as skillfully maintaining a unified culture. The horizontal division of power is seen as a
division of power between legislative, executive and judiciary. Her in this research initiative, the
article aims to undertake an in-depth understanding of executive specially its head the President
and its power. The same is being contrasted with the power of state executive’s head i.e. the
governor. Both the power of governor and president is enshrined under constitution especially in
the article 161 and 72 respectively which includes pardons, reducing punishment and remittance
of penalty. However article 161 does not allow Governor to pardon death and sentence.

So understanding the pardoning power allows us to have a clear conceptual clarity of the Union
Executive contrasted with the State executive. The same has been carried forward in this
research paper by summarizing several review papers, analyzing primary data and understanding
the rationality of several critics.

RESEARCH METHODOLOGY

The present research initiative is undertaken by analyzing numerous case laws and commentaries
and also understanding the nitty gritty of the statues. Moreover the same is reflected in the
present scenario using the extract of newspaper and recent judgment of modern era. Everything
has been summarized in a unified manner under the names of different chapters.

RESEARCH QUESTION

This research paper aims to undertake the research on the question:-

“‘What is the scope of pardoning power of President as well as Governor of the state as
conferred by the Indian Constitution.”

SCOPE AND LIMITATION

The scope of this research project is quite and diverse for the fact that it is theories pardoning
capacity of both governor and president has been interpreted in a long run continuously by the

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court of law. So summarizing everything in a single piece of paper is not at possible as it requires
much research and analysis. Moreover the cap on the word limit has played a negative role in
restricting this research initiative to a limited extent only.

CHAPTERS

I. PRESIDENT’S POWER TO GRANT PARDON.

A. Brief history about president’s power.

During India’s Colonial rule, the power to pardon punishment lied in the hands of British
Monarch. This power was ultimate and was quite unrestricted. It was like king always had the
power of mercy and can acquit any type of offense or crime. This was even accepted by
constitutional makers to some extent. President was formed as a symbolic representation of the
constitutional head whereas the central government was the ultimate reality. Similarly Governor
was made the executive head of the state who work on the advice of state legislature. The same
was thus enshrined in Constitution under Article 74 whereby it is the duty of council of minister
to aid in the day to day activities. This goes same for the role of governor.

So the action of pardoning capacity must be independent and the same cannot be arbitrary in
nature. The makers of criminal provisions in India gave an emphasis on capital punishment but
the constitutional makers viewed it as only an ultimate means of punishment and therefore
should be given the scope of mercy. The same is because where the code of penal in India was
framed to control the people, the constitution of India’s very scope was for the welfare
development of the citizens of the nation. So this led to the vesting of pardoning power in the
hands of president as the head of the constitution.

The clause 1(c) of Article 72 of the constitution of India mainly vests president to grant pardon
of death sentence. At the same time the clause 3 of the same article states that the president’s
power to extend this power is limited to giving the same to the governor of any state. The words
of Article 134 provide Supreme Court as an appellant platform where any high court of the state
has acquitted a capital punishment. This shows that constitution do allow the concept of death

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penalty in case of heinous crime. Paradoxically article 21 prohibits deprivation of life and
personal liberty except when it occurs in due process of law.

Therefore in the case of Devender Pal Singh Bhullar vs State of NCT Delhi 1, the court of law
glorified the article 72 and Article 161 as one of the highest authority while the president is the
head of the nation’s executive and governor is the head of state’s bureaucracy. Therefore their
power must be exercised with utmost care and caution keeping in minds the constitutional
principles and people’s need.

B. Different types of pardoning power

For the president the constitution under Article 72 provides 5 types of pardoning power. They
can be explained as follows:-

1. Ultimate pardoning power:- It means completely ending all the alleged conviction and thus
pardoning a person allows him to freely reside in the country like a normal person.

2. Power of commutation: - It means substituting the former type of punishment with a new one.
This provision is also evident in the Section 433 of the CrPC 1973

3. Reprieving power: - President also has vested power of delaying in the execution of a death
sentence provided it is done for a smaller period. This allows an accused to get presidential
pardon or any other appropriate legal remedy

NATURE OF PARDONING POWER OF PRESIDENT AND CASE LAWS:

In Kuljeet Singh vs Lt Governor of Delhi 2 it was held that the nature of pardoning capacity of a
president shall be rigorously examined with the facts and all the circumstances and even the
same is subjected to judicial review by the court of law.

Similarly in the case of Kehar Singh vs Union of India 3 regarded Article 72 as that of widest
amplitude and thus can be exercised in numerous cases depending upon the facts, circumstances
and situations. So the power to pardon was a constitutional value that should be exercised with
utmost care and caution.
1
(2014) 14 SCC 336
2
AIR 1982 SC 465
3
AIR 1989 SC 1975

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II PARDONING CAPACITY OF THE GOVERNOR

Similar to the resident, Article 161 of the Indian Constitution gives governor the power to give
pardon an respite or remit any form of punishment or eve suspend and commuting a guilty
person who is convicted of punishment of any nature or kind. This executive power extends to
the matter with respect to which the legislature has power to make law.

This is totally in similar lines of Article 72 of the Indian Constitution. But close interpretation of
both the Articles shows that there lie several differences between them which can be briefly
explained as follows:-

1. Firstly the president’s power is wider than the governor

2. Secondly president has all the power to grant pardon in death sentence but a governor of a
state cannot do so.

Also the power to grant pardon by president even extends to those awarded by court Martial.
This power is not granted to Governor. However all the other power remains the same between
the both.

NATURE OF PARDONING POWER OF GOVERNOR AND CASE LAWS:

In KM Nanavati vs State of Bombay 4 the court held that power conferred under article 161 is not
ultimate and is subjected to the rules of Supreme Court mainly to the cases which are pending
before the court. So it was held that governor can grant pardoning capacity as a matter of grace
but same cannot be exercised till the time apex court has awarded punishment.

Similarly in the case of Epura Sudhaka vs State of Andhra Pradesh 5 it was held that exercise of
power of Article 161 was arbitrary and the same is subject to judicial review.

CONCLUSION

4
AIR 1961 SC 112
5
AIR 2006 SC 3385

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President and the governor play a vital role in upkeeping the constitutional values and rights.
That is the reason they are the only one who are vested with the constitutional power of
pardoning capacity. India as we all know, is regarded as a tolerant country whose main motive is
the reformation of any wrongdoer. Therefore the capacity to pardon shows the world a major
democracitc principle and being virtuous. So president or the governor being the constitutional
protector must exercise this power without an arbitrary matter with utmost care and caution in
the light of constitutional values.

BIBLIOGRAPHY
BOOKS REFERRED

Shukla VN , (2018), The Indian Constitution, Lexis Nexis

Pandey J.N , (2019),The Constitutional Law of India .Allahabad Law Agency

Jain M.P , (2020), The Constitution of India Lexis Nexis

WEBSITES REFERRED

Kumar Chandan, (28 February 2022).Pardoning capacity of President.

legalserviceindia.com/legal/article-5493-pardoning-capacity-of-president.html

Singh Ramender. (7 March 2022). Critical Analysis of Article 161.

www.legalserviceindia.com/legal/article-2915-.htm-critical-analysis-of-article-161.html