INTRODUCTION

In simple terms, Pardon means to forgive a person of his offences. Reasons for having mercy are
that there are not only imperfections of law but imperfections are possible in the process of
justice, witness may lie, guardians of the law may go corrupt, So in order to prevent miscarriage
of Justice it is necessary that someone somewhere should have the reserve power to intervene.
So, this power is given to chief executive head of the country

A Pardon may be absolute or conditional. Under absolute or unconditional pardon the criminal is
set free with no conditions whatsoever. On the other hand, a conditional pardon attaches a
condition that must occur before the pardon becomes effective.

The power of Presidential pardon is found in Article 72 of the Constitution of India. A parallel
power is available to the Governor of a state Under Article 161 of the Constitution.

The power of pardon is not an absolute power of the President. It has to be exercised on the aid
and advice of the Council of Ministers and the Home Minister.

TYPES OF PARDONING POWER

1. PARDON: A pardon is an act of grace by the executive which relieves the individual from the
punishment imposed on him. A pardon may be either Full, partial or conditional.

2. REPRIEVE: Suspending the operation of punishment for sometime

3. RESPITE: When the President choses the option of Respite, he simply awards a lesser
sentence in the place of the one originally awarded due to some special facts, such as pregnancy
of a woman offender or the physical disability of the convict.

4. REMISSION: reducing the quantum of punishment

5. SUSPENSION: suspension merely stays the execution. Section 432 of the CrPC, 1973
empowers the appropriate government to suspend execution of the sentence after consulting the
Court
6. COMMUTATION: Changing the character of Punishment and substituting the lower
punishment for the higher one. For example, a rigorous imprisonment being commuted to simple
imprisonment.

NATURE AND SCOPE OF PARDON

The power vested in the President and the Governor under the Article 72 and Article 161 of the
Constitution are neither a matter of grace nor a matter of privilege. They are important
Constitutional duties vested on them by the people.

Granting pardon is purely an executive Act. It does not in any way interfere with the Judicial
Act.

The Constitution Bench of the Supreme Court in Kehar Singh v. Union of India1, declined to
suggest any guidelines for the exercise of this power because of its wide amplitude. The Court
also held the President’s power to pardon as an executive character and held that the
convict(petitioner) has no right to insist for an oral hearing before the President or the Governor.

JUDICIAL REVIEW OF CONCEPT OF PARDON

There has always been a debate as to whether or not the power to pardon should be subjected to
the judicial review. The Hon'ble judges in many cases had provided that the pardoning power can
be subject to a review where the decision of the executive had been made on any of the following
grounds: altogether irrational, arbitrary, unreasonable or mala fide grounds which includes
discrimination.

The Constitutional Bench of the Supreme Court in the case of Maru Ram v. Union of India2 held
that the power of pardon, respite, commutation and release under Article 72 has to be exercised

1
Kehar Singh v. Union of India, AIR 1989 SC 653.
2
Maru ram v. Union of India, AIR 1980 SC 2147.
on the advice of the Central Government and not by the President (Governor) on his own, and
that the advice of the Government

The Supreme Court in case of Kehar Singh v. Union of India3 held that the President’s order
cannot be subjected to judicial review on its merits. The only exception to this are the strict
limitations defined in Maru Ram’s case. The court reiterated “it appears us clear that the question
as to the area of the President’s power under Article 72 falls squarely within the judicial domain
and can be examined by the court by way of judicial review.”

Pasayat J laid some grounds on which the judicial review under Article 72 and 161 is available.

The grounds were following:

➢ The order was passed without application of mind.

➢ The order was mala fide.

➢ The order was passed on extraneous or wholly irrelevant considerations.

➢ The relevant materials were kept out of consideration

➢ The order suffered from arbitrariness.

CONCLUSION

It is an integral part of the Constitution in almost every jurisdiction. This power is of quasi-
judicial vis-à-vis administrative nature. With the emergence of democratic polity, this power has
now been vested in the head of the State i.e. the President.

No system of judicial administration, in this heavenly world, is free from imperfections. So, the
aim of the pardoning power is to save the individuals from unjust laws and possible judicial
lapses..
3
Kehar Singh v. Union of India, AIR 1989 SC 653.
Judicial review is the basic feature of the Constitution. The Supreme Court has been granted this
power as a matter of right to review any law or order passed by the Legislature or any Judicial
matters or Executive matters. Indeed, this exercise of power of power of Pardon by the President
or the Governor is also not immune from the scope of Judicial Review. Any decision or order
passed by the executive without the application of mind or passed arbitrarily or irrationally or
which is malafide in nature and/or which is discriminatory in nature might be examine by the
Court under Review petition.