TOPIC NAME- EXERCISE OF PARDONING POWER BY THE PRESIDENT:

EVOLUTION AND CONTEMPORARY RELEVANCE

TOPIC NO. -2

ROLLNO. –

(In digits) 1823

(In words) one eight two three

Semester – II

Subject- Constitutional Governance II

1
TITLE- EXERCISE OF PARDONING POWER BY THE
PRESIDENT: EVOLUTION AND CONTEMPORARY
RELEVANCE

Table of Contents

Introduction.............................................................................................2
The origins of pardoning power............................................................3
Exploring the Presidential Pardoning Power around the World.......4
Under U.S. Constitution..............................................................................................................4
England........................................................................................................................................5
Ireland(Eire).................................................................................................................................6
France..........................................................................................................................................6
Germany......................................................................................................................................6
Japan.—.......................................................................................................................................7

Pardoning power of president In India –.............................................7

Historical Backdrop.....................................................................................................................7
Contemporary Law......................................................................................................................8

Analysis & Conclusion.........................................................................15

2
Introduction

Pardoning powers are exercised and given to kings, rulers since time immemorial. As because
the humans are gullible and there is always a chance of fallibility while giving Judgements so in
order to revert back a decision or saving someone’s life , Heads of Nations have shown mercy on
accused and convicts.

The power of mercy has been given importance in literature as well, one can have a look at the
words spoken by Portia in the Shakesperian play “Merchant of venice” on having mercy and
how it is an act of god , she says,

“The quality of mercy is not strained.

It droppeth as the gentle rain from heaven,
Upon the place beneath.
It is twice blessed.
It blesseth him that gives and him that takes.
It is mightiest in the mightiest,
It becomes the throned monarch better than his crown.
His sceptre shows the force of temporal power,
An attribute to awe and majesty.
Wherein doth sit the dread and fear of kings.
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself.
And earthly power dost the become likest God's,
Where mercy seasons justice.
Therefore Jew,
Though justice be thy plea, consider this,
That in the course of justice we all must see salvation,
We all do pray for mercy
And that same prayer doth teach us all to render the deeds of mercy.”1

This projects would try to explain the Pardoning power exercised by presidents and heads of

1
Shakespeare, William, 1564-1616. The Merchant of Venice. Harlow, Essex, England :Longman, 1994

3
state around the globe and particularly India, would also venture into origins of the Clementine
powers and further shall try to expand the understanding on the subject matter.

4
The origins of pardoning power

“Every civilized country recognizes and has, therefore, provided for, the pardoning power to be
exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to
be exercised by some department or functionary of government, the country would be most
imperfect and deficient in its political morality, and in that attribute of deity whose judgments are
always tempered with mercy.”2 In England this force has been practiced from days of yore and
has consistently been viewed as a vital quality of power. In the United States, this force is
reached out to the President by the United States Constitution and in the different States and
domains, it is either presented by Constitutional arrangement or natural act, or gave by
resolution, the force ordinarily being given upon Governor or upon a leading body of which the
Governor is a part.

The pardon is based on the royal Prerogative of English Kings, which gave the king the ability to
overturn any sentence. Originally, the king's prerogative existed without any limitations attached
to it. But during the reign of King Charles II (1660-85), the English Parliament managed to
institute the single rule that impeachment was excluded from the pardon power3

2
American Jurisprudence, 2nd Edn, p 5.
3
Josh Clark , "How Presidential Pardons Work" 9 August 2007, HowStuffWorks.com.
<https://people.howstuffworks.com/presidential-pardon.htm> 20 June 2020.

5
Exploring the Presidential Pardoning Power around the World

Under U.S. Constitution

Article II, section 2(1) of the American Constitution says:

He (the President) shall have the power to grant reprieves and pardons for offences against the
United States except in case of impeachment4

This is called the judicial power of the President. The power to pardon, historically entwined
with the Executive’s role in enforcing the law, is absolute, except as limited by other
Constitutional provisions. A pardon nullifies punishment or other legal consequences of an
offence. It is commonly thought of as an act of grace from the Executive bestowed upon an
individual who has committed a criminal act because the penalty imposed was not thought to be
excessive or in error. Such an act of clemency (mercy) is entirely a discretionary act and is
different from a reprieve, which merely postpones the execution of a sentence or a commutation
which reduces it. The remission of fines is another form of clemency. Since 1900, Presidents
have averaged approximately 150 pardons a year. On the average, Presidents have acted
favourably on petitions for clemency about 3% of the time. The pardoning power may be
exercised by him at any time after the offence has been committed, either before or after trial or
conviction5 The pardoning power is not exercised by the President according to his own caprice
but on the recommendation of the Department of Justice, after the latter has made a study of the
records relating to the case6

In Ex parte Garland7, JUSTICE FIELD had described the power to pardon as unlimited except in
cases of impeachment.

The power extends to every offence known to the law, and may be exercised at any time after its
commission, either before legal proceedings are taken or during their pendency or after
conviction and judgment. If pardon reaches both the punishment prescribed for the offence and
the guilt of the offender.

JUSTICE HOMES while explaining the rationale behind the pardoning power in the case of
Biddle v Perovich.8 stated thus:
4
U. S. Const. art. II,, § 2(1).
5
Ex parte Garland, (1866) 4 Wall 333
6
Munro, Government of the United States
7
Supra at 5.
8
Biddle v Perovich, 274 US 480 (1927).

6
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. Where 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.

England

The pardoning power is a royal prerogative, exercised on the advice of the Home Secretary.
It is an Executive act, but the Home Secretary is authorised by the Criminal Appeal Act,
1907, to refer a case to the Court of Criminal Appeal, either for opinion or for final disposal
as if it was an appeal. Ordinarily the power is exercised after sentence when there is some
special reason why a sentence shall not be carried out; but a pardon also is available before
conviction9.It cannot, however, be pleaded in bar to an impeachment (Act of Settlement,
1707).10 Further, it is only an offence of a public character that may be pardoned, and not an
action between subject and subject, and penalties payable to a private person cannot be
remitted save by statute.11At common law, the commission of a public nuisance cannot be
pardoned until it has been abated.12

The royal prerogative of pardon is exercised by the Crown on the advice of Home Secretary.
Pardons under the prerogative are of three kinds–(a) an absolute or free pardon, which sets
aside the sentence, but not the conviction; 13 (b) a conditional pardon which substitutes one
form of punishment for another (for example, the substitution of life imprisonment for death
penalty which occurred when the prerogative of mercy was exercised in the days of capital
punishment); 14and (c) a remission which reduces the amount of a sentence without changing
the character and has been used to enable a convicted spy to be exchanged for a British
subject imprisoned abroad or to reward prisoners who have given exceptional assistance to
prison staff, the police or the prosecuting authorities.

In HALSBURYS’ LAWS OF ENGLAND it is stated thus:

9
3 Co Inst 235.
10
Bradlaugh v Clarke, (1883) 8 App Cas 354 .
11
Wade and Phillips, Constitutional Law, 8th Edn, p 323.
12
R v Foster, (1985) QB 115
13
P. Bratt, (1957) 20 MLR 13.

14

7
 A pardon is usually granted on the advice of the Home Secretary to whose notice the matter
is brought either on a recommendations to mercy by the judge when passing sentence or on
petition by the criminal himself or friends on his behalf. The exercise of the prerogative of
mercy in a case, where a death sentence is under consideration cannot be the subject of
discussion in Parliament until the sentence has been carried out. The courts may not enquire
into the merits of the exercise of the prerogative, but there may be cases in which the exercise
is reviewable. While a power of pardon can expunge past offences, it cannot be used to
dispense with criminal responsibility for an offence which has not yet been committed and
waive responsibility for future offences.

LORD DEMMING MR discussed the nature of prerogative and said:

seeing that the prerogative is a discretionary power to be exercised for the public good, it
follows that its exercise can be examined by the courts just as any other discretionary power
which is vested in the Executive.

Ireland(Eire)

Article 13(6) of the Constitution of 1937 says:

The right of pardon and the power to commute or remit punishment imposed by any court
exercising criminal jurisdiction are hereby vested in the President, but such power of
commutation or remission may, except in capital cases, also be conferred by law on other
authorities.

France

In the Constitution of 1958, the pardoning power of the President is not limited in any way.
Article 17 simply says—

The President of the Republic shall have the right of pardon.

Germany

Article 60(2)-(3) of the West German Constitution, 1949, explains the scope of the pardoning
power of the President—

8
He exercises the power of pardon on behalf of the Federation in individual cases. He may
delegate these powers to other authorities.

Hence, the President has no power to declare a general amnesty under above power.

Japan.—

Under Article 7 of the Constitution of 1946, the power belongs to the Emperor, acting with the
approval of the Cabinet:

The Emperor, with the advice and a pproval of the Cabinet, shall perform the following acts in
matters of State on behalf of the people:

Attestation of general and special amnesty, commutation of punishment, reprieve, and

restoration of rights.

It is to be noted that the word “pardon” is not mentioned in the Article, but expression
“restoration of rights” would refer to a “full pardon”

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Pardoning power of president In India –
Historical Backdrop

Government of India Act, 1935.—

Under section 295 of the Government of India Act, and section 402-A, Criminal Procedure
Code, the pardoning power was divided between the Governor-General and the Provincial
Governors. Broadly speaking, the power to grant “pardon” belonged to the Governor-General
and the Crown while the power of suspension, remission, etc. belonged concurrently to the
Governor-General and the Provincial Governor.

Section 295 of the Government of India Act, 1935, was as follows:

(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 of commutation of sentence as
were vested in the GovernorGeneral in Council immediately before the commencement of Pt
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 a sentence passed by a court-martial.

(2) Nothing in this Act 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.

In the result, the Governor-General in his discretion had the power to grant pardon,
remission, etc., in cases of sentences of death and Governors of Provinces had the power in
regard to all sentences passed in the Province, but the power of the Crown and of the
Governor-General as a delegate of the Crown remained unaffected. In other words,
notwithstanding the division of power between the Governor-General and the Governors by
the Government of India Act, 1935 or any other existing law, the prerogative powers of the
Crown and of the Governor-General as a delegate, remained unaffected15

Contemporary Law

Article 72 States that :

15
State of UP v Sanjay Kumar, (2012) 8 SCC 537 [LNINDORD 2012 SC 416]

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 (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.

Now defining what is meant by the terms given in Article 72

 Pardon –A pardon completely absolves the offender from all sentences and punishment
and disqualifications and places him in the same position as if he had never committed the
offence.

 Commutation– Commutation means exchange of one thing for another. In simple words

to replace the punishment with less severe punishment. For example for Rigorous
imprisonment-simple imprisonment.

 Reprieve– Reprieve means temporary suspension of death sentence. For example- 

pending a proceeding for pardon or commutation.

 Respite – Respite means awarding a lesser punishment on some special grounds. For
example- the Pregnancy of women offender.

 Remissions– Remission means the reduction of the amount of sentence without changing

its character, for example, a sentence of 1 year may be remitted to 6 months

The power of pardon under Article 72 was reviewed in the two landmark cases of Maru Ram
v Union of India 16and Kehar Singh v Union of India.17

In Maru Ram the Court while deciding upon the validity of 433A of the Code of Criminal
Procedure examined the power of pardon under Article 72. It observed:

16
1981(1) SCC 107.
17
1989 (1) SCC 204.

11
 “Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have
indicated above. Political vendetta or party favouritism cannot but be interlopers in this area.
The order which is the product of extraneous or mala fide factors will vitiate the
exercise….For example, if the Chief Minister of a State releases every one in the prisons in
his State on his birthday or because a son has been born to him, it will be an outrage on the
Constitution to let such madness survive.”

The Court summarized its findings by stating:

“Considerations for exercise of power under Articles 72/161 may be myriad and their
occasions protean, and are left to the appropriate Government, but no consideration nor
occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare
cases will the court examine the exercise.”

In addition to the above constitutional provisions the Criminal Procedure Code 1973
provides for power to suspend or remit sentences –

Section 432 and the power to commute sentence. 18

Section 433A lays down restrictions on provisions of remission or commutation in certain

cases mentioned therein.

Section 434 confers concurrent power on the central government in case of death sentence.

Section 435 provides that the power of the state government to remit or commute a sentence

where the sentence is in respect of certain offences specified therein will be exercised by the

state government only after consultation with the central government.

Sections 54 and 55 of the IPC confer power on the appropriate government to commute
sentence of death or sentence of imprisonment for life as provided therein.

In Kehar Singh the Court considered the nature of the President‟s power under Article 72
while dealing with a petition challenging the President‟s rejection of a mercy petition by
Indira Gandhi‟s assassin, Kehar Singh. The Court explicitly held in that „Article 72 falls
squarely within the judicial domain and can be examined by the court by way of judicial
review.

‟ However the Court qualified this finding by holding that the order of the President cannot
be subjected to judicial review on its merits except within the strict limitations defined in
Maru Ram. What are these limitations? Considerations that are arbitrary or „wholly
irrelevant, irrational, discriminatory or mala fide.‟ However in Kehar Singh the Court
declined to lay down guidelines for the exercise of the power under Article, stating that there
18
See Section 433, CrPC, 1973

12
 s sufficient indication in the terms of Art.72 and in the history of the power enshrined in that
provision as well as existing case law. The decisions in Maru Ram Kehar Singh still hold the
field and thus the present position is that Presidential Pardon under Article 72 is subject to
judicial review on the grounds mentioned in Maru Ram v Union of India.

The rationale of the pardon power has been felicitously enunciated by the celebrated Justice
Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words:

“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”.19

In the case of Kehar Singh v. Union of India these observations of Justice Holmes have
been approved.

The classic exposition of the law relating to pardon is to be found in Ex parte Philip
Grossman where Chief Justice Taft stated:

“Executive clemency exists to afford relief from undue 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.”20

The dicta in Ex parte Philip Grossman were approved and adopted by the apex Court in
Kuljit Singh v. Lt. Governor of Delhi. 21In actual practice, a sentence has been remitted in
the exercise of this power on the discovery of a mistake committed by the High Court in
disposing of a criminal appeal. 22

From the foregoing it emerges that power of pardon; remission can be exercised upon
discovery of an evident mistake in the judgment or undue harshness in the punishment
imposed.

However the legal effect of a pardon is wholly different from a judicial supersession of the
original sentence.

In Kehar Singh‟s case the Hon‟ble Court observed that in exercising the power under Article
72 “the President does not amend or modify or supersede the judicial record. And this is so,

19
71 L. Ed. 1161 at 1163
20
69 L. Ed. 527
21
1982 (1) SCC 417.
22
See Nar Singh v. State of Uttar Pradesh, AIR 1954 SC 457.

13
 notwithstanding that the practical effect of the Presidential act is to remove the stigma of
guilt from the accused or to remit the sentence imposed on him”.23

The President “acts in a wholly different plane from that in which the Court acted. He acts
under a constitutional power, the nature of which is entirely different from the judicial power
and cannot be regarded as an extension of it”.

This ostensible incongruity is explained by Sutherland J. in United States v. Benz24 in these

words:

“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 a judgment

According to the Report of the U.K. Royal Commission pardon can be granted where the
Home Secretary feels that despite the verdict of the jury there is a “scintilla of doubt” about
the prisoner‟s guilt.

Judicial decisions, legal text books, reports of Law Commission, academic writings and
statements of administrators and people in public life reveal that the following considerations
have been regarded as relevant and legitimate for the exercise of the power of pardon.

Some of the illustrative considerations are:

(a) interest of society and the convict;

(b) the period of imprisonment undergone and the remaining period;

(c) seriousness and relative recentness of the offence;

(d) the age of the prisoner and the reasonable expectation of his longevity;

(e) the health of the prisoner especially any serious illness from which he may be suffering;

(f) good prison record;

(g) post conviction conduct, character and reputation;

(h) remorse and atonement;

(i) deference to public opinion.

It has occasionally been felt right to commute the sentence in deference to a widely spread or
strong local expression of public opinion, on the ground that it would do more harm than
23
See Kehar Singh, supra at 9
24
75 L. Ed. 354.

14
 good to carry out the sentence if the result was to arouse sympathy for the offender and
hostility to the law 25

The Governor‟s power of pardon under Article 161 runs parallel to that of the President
under Article 72 and thus several cases based on the same have a bearing on the Presidential
Power under Article 72. Moreover judgments dealing with Article 72 have simultaneously
deal with Article 161 and vice-versa. In the early case of K.M. Nanavati v State of Bombay
26
a reprieve granted by the Governor under Article 161 was held constitutionally invalid since
it conflicted with the rules made by the Supreme Court under Article 145.

In Swaran Singh v State of U.P.27, the Governor of Uttar Pradesh remitted the whole of the
life sentence of an MLA of the State Assembly who had been convicted of the offence of
murder within a period of less than two years of his conviction. The Supreme Court found
that Governor was not posted with material facts such as the involvement of the accused in 5
other criminal cases, his unsatisfactory conduct in prison and the Governor‟s previous
rejection of his clemency petition in regard to the same case.

It is necessary to keep in mind the salutary principle that: 28

“To shut up a man in prison longer than really necessary is not only bad for the man himself,
but also it is a useless piece of cruelty, economically wasteful and a source of loss to the
community.”

If the court cannot sit in judgment on how discretion is exercised, what exactly is it
reviewing? This is how the Supreme Court put it in the 1997 case of Mansukhlal Vithaldas
Chauhan v. State of Gujarat:29

“The Court does not sit as a court of appeal but merely reviews the manner in which the
decision was made particularly as the Court does not have the expertise to correct the
administrative decision.”

It clarified that the aim of such judicial review is not to substitute executive's discretion for
the judge's discretion but to confine itself to questions of legality, which mean in effect the
following five basic questions:

1. Did the decision-making authority exceed its powers?

2. Did the authority commit an error of law?

3. Did the authority commit a breach of the rules of natural justice?

25
See Law Commission Report, page 328, para 1071.
26
(1961) 1 SCR, p. 541.
27
1998 (4) SCC 75.
28
As quoted in Burghess, J.C. in (1897), U.B.R. 330 (334).
29
Supra at 4

15
 4. Did the authority reach a decision that no reasonable tribunal would have reached?

5. Did the authority abuse its powers?

The Court quashed the order reasoning that the Governor was apparently deprived of the
opportunity to exercise the powers in a fair and just manner, hence the „order fringed on
arbitrariness.‟

In Satpal v State of Haryana,30the Supreme Court quashed an order of the Governor

pardoning a person convicted of murder on the ground that the Governor had not been
advised properly with all the relevant materials. The Court spelt out specifically the
considerations that need to be taken account of while exercising the power of pardon,
namely, the period of sentence in fact undergone by the said convict as well as his conduct
and behaviour while he underwent the sentence. The Court held that not being aware of such
material facts would tend to make an order of granting pardon arbitrary and irrational. The
Court also noted the fact that the accused was a member of a political party and had
committed the murder during election year.

In the recent judgment of Epuru Sudhakar and Anr. v Government of Andhra Pradesh
31
and Ors. the Court set aside a remission granted by the Governor of Andhra Pradesh on the
ground that irrelevant and extraneous materials had entered into the decision making. The
Report of the District Probation Officer which was one of the materials on which the decision
was based, highlighted the fact that the prisoner was a Good Congress Worker and that he
had been defeated due to political conspiracy. Similarly the Report of the Superintendent of
Police reached a conclusion diametrically opposite to the one it had reached before elections
were conducted.

The Court observed in this context,

“The only reason why a pariah becomes a messiah appears to be the change in the ruling
pattern. With such pliable bureaucracy, there is need for deeper scrutiny when power of
pardon/remission is exercised.”

Thus in these judgments concerning the Governor‟s exercise of pardon, the Court seems to
have widened the grounds for judicial review by enumerating specific grounds on which the
grant of pardon can be considered arbitrary. Among these are non-consideration of relevant
factors such as length of the sentence already undergone, the prisoner‟s behaviour and

involvement in other crimes and consideration of extraneous or irrelevant grounds such as

political affiliation. Yet another aspect of the President‟s power of pardon that has been
subject to judicial scrutiny is the time taken for exercising the same.

30
2000 (5) SCC 170.
31
Writ Petition (crl.) 284-285 of 2005

16
 In Shivaji Jaising Babar v State of Maharashtra 32a delay of 4 yrs in taking a decision on
the exercise of this power on the prisoner‟s mercy petition was held to be sufficient ground
to alter the prisoner‟s sentence.

The principles of judicial review on the pardon power have been restated in the case of Bikas
Chatterjee v. Union of India.33The former Attorney-General, Soli Sorabjee, expressed the
view that a terrorist who has declared war on the nation is in essence no different from
enemy soldiers whose duty and mission it is to maim and kill the country's citizens. Enemy
soldiers and personnel, he said, are killed in war not by way of reprisal but for the sake of the
nation. Seen in this light, terrorist-convicts may not, after all, deserve mercy. anak Raj Jai, a
writer and a legal expert, suggests that capital punishment may perhaps be reserved only for
terrorists. Jai, who has written a book on death penalty, was invited by President Kalam for a
discussion in August. Jai suggested to him that a convict whose mercy petition had been
accepted by the President could continue to be in jail beyond 14 years - the minimum
sentence meant for life imprisonment - if he could not be reformed and rehabilitated within
that period.

Under the Constitution, the President can return a recommendation to the Cabinet for
reconsideration only once; if the Cabinet sends the recommendation back, the President is
bound to act on that advice. However, there are a few areas where the President can exercise
his discretion, independently of the aid and advice of the Cabinet.

Is Article 72 one of those areas where the President can exercise unfettered discretion?
Former Chief Justice of India P.N. Bhagwati was the lone Judge who dissented in the
Bachan Singh case.34He is of the view that the President enjoys absolute powers under
Article 72. According to Jai, advice by the Home Ministry is bound to be political and will
not inspire confidence. His contention is that as the state is the prosecution agency in all
cases of murder, it cannot be expected to decide on a mercy plea objectively and upset a
judicial verdict.

The theory that the President or the Governor, while deciding on mercy petitions, acts with
the aid and advice of the Council of Ministers has led to bizarre situations. The President, in
practice, is asked to submit to the opinion of a Joint Secretary in the Department of Justice or
the Home Minister, in their individual capacities. The Council of Ministers headed by the
Prime Minister, with whose aid and advice the President exercises his powers in most other
matters, does not collectively apply its mind to the merits of every mercy petition If the
President disagrees with the Home Ministry's advice, he has the option in practice to avoid
taking a decision on these petitions, as some of his predecessors have done. The Supreme
Court has held in the Triveniben case (1989) that inordinate delay in taking a decision on
32
AIR 1991 SC 2147.
33
2004 (7) SCC 634 at 637.

34
1980 (2) SCC684.

17
 mercy petitions by the President could itself be a ground for commuting a sentence of death,
since it causes so much mental torture for the convict. Although it is debatable whether the
convicts see the delay caused by executive indecision in their favour as it extends their lives,
the prolonged anxiety is sure to neutralise any quantitative addition to their lives.

In a decision the Supreme Court in Government of A.P. v. M.T. Khan35stated that if the
government consider it expedient that the power of clemency be exercised in respect of a
particular category of prisoners the government had full freedom to do so and also for
excluding certain category of prisoners which it thought expedient to exclude. The Court
further observed that “to extend the benefit of clemency to a given case or class of cases is a
matter of policy and to do it for one or some, they need not do it for all, as long as there is no
insidious discrimination involved”

35
2004 (1) SCC 616

18
Analysis & Conclusion

After much discussion, the unavoidable issue despite everything remains – making sense of the
connection between the official and the legal executive. Picture this: a sentenced individual, after
much intrigue, goes to the official if all else fails and argues for leniency, and the President
subsequently concedes him forgiveness. In this situation, legal survey of the issue would be
strange, as the court can't choose to disregard its past decisions, nor would it be able to return to
its ultimate conclusion, abrogating the President's exoneration. The choice of giving acquittals
can't be accepted the very same path as a court – the President should think about all conditions,
including the situation of the group of the person in question, the general public when all is said
in done and furthermore understand that he will start a trend for what's to come

An opinion piece in the Caravan 36calls for more transparency from the President while
exercising the power to pardon, while another piece in the Times of India37 argues that since there
is an appeal process till the Supreme Court, there is no need for a system of presidential pardons.

Questions are now arising on several clemency decisions given by various US Presidents.
Amongst which most of them are given by Bill Clinton. Bill Clinton granted about 395 pardons
during his presidency amongst which 140 were issued on his final day in his office. It could be
clearly seen that pardon power could be misused. Recently a house judiciary Committee which
was hearing into the decision to commute the sentence of former White House aide I.Lewis
“Scooter” Libby has said that it would review all the previous pardon given by various
presidents.

Thus when the President’s Absolute power to grant a pardon can be brought under judicial
review then why can’t the power granted to Indian President be reviewed.

Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan 38 said “Law cannot
stand still; it must change with the changing social concepts and values. Law constantly be on
the move adapting itself to the fast-changing society and not lag behind”.

Amartya Kanjilall The Quality of Mercy Pranab Mukherjee’s troubling record on clemency for death-row convicts
36

01 July 2017 <https://caravanmagazine.in/perspectives/pranab-mukherjee-clemency-death-row-convicts> 20 June

2020
37
Arghya Sengupta No pardons please: Disposing mercy petitions has been President Mukherjee’s foremost legacy
25 July 2017 <https://timesofindia.indiatimes.com/blogs/toi-edit-page/no-pardons-please-disposing-mercy-petitions-
has-been-president-mukherjees-foremost-legacy/>20 June 2020
38
1983 AIR 75, 1983 SCR(1) 9.

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Thus in my opinion, it is time that presidential pardoning power should come under Judicial
review fir transparency and to hold the executive head of nation accountable

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