23-01-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

POWER OF THE PRESIDENT TO

GRANT PARDONS

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Mercy power: Its need and justification

• justice should be tempered with mercy

– Justice - by the courts – according to law- which is general – special individual problems are
largely ignored – this, at times, leads to gross injustice in individual cases
– Authority of courts is limited- therefore, power must lie some-where to do the needful when
the situation so demands
– Apart from the imperfections of law, imperfections are possible in the process of justice
• Witnesses may lie
• Guardians of law may go corrupt
• Because of many other reasons the truth in the case may be prevented from coming to the fore at the
time of trial
• In order to prevent miscarriage of justice it may be necessary that someone somewhere should have
the reserve power to intervene
• This power is always given to the Chief Executive
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Art. 72 of the Constitution

72. 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 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.

(Art. 161. Power of Governor to grant Pardons, etc., and to suspend , remit or commute sentences in certain
cases.)

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

NATURE AND CONTENT OF THE MERCY POWER

• UK: Crown’s mercy jurisdiction in the UK is not much litigated

• USA:
– Article II, Section 2(I) of the US Constitution provides that the President
“shall have power to grant reprieves and pardons for offences against the
US, except in cases of impeachment”
– “Pardon” is broad enough to include powers of remission and commutation
as well
– Since the power is to pardon offences, it can be exercised also at the pre-
conviction and pre-trial stages, though not at pre-commission stage

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Nature and content of the mercy power: India

• K.M. Nanavati v. State of Bombay, AIR 1961 SC 112, J.L. Kapur J

in his dissenting judgment
– assumes that the President’s and the Governor’s constitutional power
of mercy is wide and can be exercised at pre-trial stage or during the
course of trial
– But he has not grappled with the implications of the use of the term
“punishment” in Art 72 & 161 which can be held to have restricted the
scope of their power to pardon
– Power to pardon convicts and not mere offenders

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

COMMUTATION, REMISSION & REPRIEVE

• Other exercise of mercy power give less relief than pardon

– Commutation: means changing the character of punishment and substituting the
lower punishment for the higher one
• Life imprisonment is lower than the death sentence and imprisonment for a term is lower
than life imprisonment
– Remission: means reducing the quantum of punishment
• Eg. When a fine of rs. 10,000 is reduced to rs. 2,000 or imprisonment of 10 yrs
is reduced to two yrs
– Respite: It denotes awarding a lesser sentence in place of one originally awarded
due to some special fact, such as the physical disability of a convict or the
pregnancy of a woman offender.
– Reprieve: means suspending the operation of punishment for some time.
– Mercy jurisdiction of the President and Governor can be exercised in all these
forms
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CLEMENCY POWER OF PRESIDENT AND THE

LEGISLATURE
• A constitutional power, it cannot be curtailed by any law passed by Parliament
– Maru Ram v. Union of India, (1981) I SCC 107
– the Constitutionality of sec. 433-A Cr.P.C. was challenged- one of the ground was that it
violates Art 72/161
– The impugned section provides that sec 432 of the code which allows the appropriate govt
to remit the sentence of a prisoner, cannot be used so as to reduce the actual period of
imprisonment of two classes of prisoners below 14 years
– The persons covered by sec 433-A are the persons who are sentenced
• 1) to undergo life imprisonment for offences which prescribe death sentence as an alternative
punishment
• 2) And also the persons who had been sentenced to death sentence but the same has been
commuted to life imprisonment

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Maru Ram v. Union of India, (1981) I SCC 107

TWO THINGS MAY BE SIMILAR BUT NOT THE SAME

• Krishna Iyer J observed

• It is apparent that superficially viewed, the two powers, on constitutional and the other statutory, are coextensive.
But two things may be similar but not the same ... The source is different, the substance is different, the strength is
different, although the stream may be flowing along the same bed ...
• The court ruled that sec 433-A was constitutional and it did not impair the power of the President u/A 72
• Despite sec 433-A the executive heads continue to possess the power to remit the quantum of
sentence including of those prisoners who are covered by sec 433-A
– Legislature can without derogating from the constitutional power of the President, legislate on the
subject of clemency, and cl. (2) & (3) of Art 72 show that Parliament can also confer the power to
grant clemency on authorities other than President and Governor
– The source of one power will be the ordinary law, while the source of the other power will be the
Constitution. One can be taken back by the legislature, but the other is totally untouchable
– Acting under Entry –I of the Concurrent List general law of amnesty can be passed

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RELATIONSHIP OF THE EXECUTIVE POWER OF

CLEMENCY WITH JUDICIARY

• Sarat Chandra Rabha v. Khgendra Nath, AIR 1961 SC 334 – Q. was whether the
period of sentence remitted by executive clemency could be treated as equivalent to
reduction of sentence by a court of law?
• Under the Representation of the People Act a person is disqualified from contesting
election if he is sentenced to undergo imprisonment for two years or more
• Wanchoo J said, “ in law the order of remission merely means that the rest of the
sentence need not be undergone, leaving the order of conviction by the court and the
sentence passed by it untouched

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

KEHAR SINGH V. UNION OF INDIA, (1989) I SCC 204

• Q. Whether the contention of the President that while considering the mercy application of the
petitioner he did not have the authority to go into the merits of the decision of the courts, including
the SC finding him guilty and sentencing him to death correct?
• A Constitution Bench gave the answer in the negative.
• Petitioner had been found guilty in Indira Gandhi Assassination case, and had been sentenced to
death. His contention was that he was innocent
• Mercy petition- He requested the President to give him personal hearing and reassess the
evidence on record
• SC held-
• President was not bound to give him either personal hearing or reassess the evidence and it was up to
him to decide as to how to dispose of the application
• Nevertheless, he could not decline to do so on the ground that it was not permissible for him to upset
judicial findings.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ACCOUNTABILITY FOR THE EXERCISE OF MERCY

POWER

• It is well known constitutional principle that the President is not personally

accountable for the exercise of his powers
• It is the government of the day which is held to be accountable
• Q. Whether this responsibility is constructive for the reason that the power has
to be exercised on the advice of the Ministers
• SC- power has to be exercised on the advice of the Ministers (Maru Ram as well
as Kehar Singh)

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SCOPE OF JUDICIAL REVIEW

• In Maru Ram, Krishna Iyer J said,

• “ Wide as the power of pardon, commutation and release is, it cannot run
unruly”
• Public power, whatever its source, must be exercised in a rational and non-
arbitrary manner
• Thus, power of clemency must not become a source of discrimination on
communal, party or personal considerations.
• He emphasised on the need for proper guidelines as well
• But insisted that the power was entrusted to the executive and the courts
would not interfere unless there was a clear abuse of the power

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…SCOPE OF JUDICIAL REVIEW

• Kuljeet Singh v. Lt. Governor, (1982) I SCC 417
• A 3 judge Bench of the SC headed by Chandrachud CJ entertained a writ
petition to examine whether there could be laid down any guidelines to ensure
fair play and an uniform standard in the exercise of the power of clemency
u/a 72, especially Art 72 (I) (c) where sentence of death was in issue
• Petition was dismissed without hearing the arguments with the observation that
it did not provide the proper occasion for examining such an issue
• Petitioner”s case was one which did not deserve any mercy
• KEHAR SINGH V. UNION OF INDIA, (1989) I SCC 204, Pathak CJ said that the
President had to consider so many cases, each case having some special
characteristic of its own, and therefore, “it may not be possible to lay down any
precise, clearly defined and sufficiently channelised guidelines”
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

... SCOPE OF JUDICIAL REVIEW

• There are SC decisions where the court has actually interfered with the exercise of power by the
Governor u/a 161
• These cases show that the judicial interference was formally based on the technical grounds of
non-application of mind and concealment of important relevant facts
• Sone of judgments shows that even otherwise the court might have interfered on the ground of
mala fide exercise of power or on the ground of arbitrariness
• Facts in all the cases reveal some element of political partisanship

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SWARAN SINGH V. ST OF U.P., (1998) 4 SCC 75

•One Doodh Nath had been convicted for murder and had been sentenced to life imprisonment. Hardly a little
after two years he was released because the Governor had remitted his remaining sentence. Even this short
period he had not entirely spent in the prison because he was on parole for considerable period
•At the time when the Governor exercised his power, he was involved at least in 05 other serious cases, a fact
was not brought to the notice of the Governor
•Nor was the governor told that an earlier application for remmission presented by him had been rejected
•His behaviour in the jail was also not satisfactory. Only thing special about him was that at the time of his
conviction he was an MLA. After his conviction his wife became MLA from the same constituency.
•Perhaps this enabled him to get his case recommended by a large number of MLAs which prompted the CM to
recommend his case for remission of the remaining sentence
•Thus, there was enough technical lacunae for the court to intervene and the formal judicial order required the
Governor to reconsider his case in the light of the relevant facts which had been suppressed
•But the suppressed facts are so negative that one wonders if a reasoned positive order was possible after
mentioning them

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SATPAL V. ST OF HARYANA, (2000) 5 SCC 170

• Governor had exercised his powers u/a 161 in favour of one Siriyans Kumar Jain who had been
convicted for murder along with a few others and had been sentenced to life imprisonment
• Murder had been committed in the context of a municipal election and the convicts were affiliated to
BJP.
• HC had acquitted Mr Jain but this was reversed in the SC with the direction that he should immediately
surrender to the custody. But Mr Jain, instead, preferred to pursue his case for release by getting a
pardon from the Governor
• State authorities, instead of taking immediate steps to arrest him, were busy in haste, to prepare his
case for pardon
• Governor remitted his remaining period of imprisonment
• SC- invalidated the Governor’s order leaving it open to him to reconsider the whole case properly
(whole thing presented a picture of arbitariness )

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

EPURU SUDHAKAR V. GOVT OF A.P., (2006) 8 SSC 161

• Governor had granted remission to one Gouru Venkata Reddy who had
been sentenced to 10 years’ imprisonment u/s 304 IPC
• SC-
• invalidated the Governor’s order by finding that certain facts considered by him
were either irrelevant or false or even politically managed
• That Convict was a good Congress worker was irrelevant
• He was maintaining amicable relations with the deceased’s family was patently false
• Contradictory evaluations presented by Suptd. Of Police at different times
appeared to be the result of change in the complexion of government at the State
level

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SHATRUGHAN CHAUHAN V. UNION OF INDIA,

(2014)3SCC1
• P. Sathasivam, C.J.I., Ranjan Gogoi and Shiva Kirti Singh, JJ.
• Present petitions filed seeking commutation of death sentence into life imprisonment on rejection of mercy
petitions by Governor and President on ground that rejection of mercy petition was unconstitutional –
• Held, even death convicts had to be treated fairly in light of Article 21 of Constitution –
• In past, Court had accepted in series of decisions that undue and unexplained delay in execution was one of
supervening circumstances –
• There was unexplained delay in disposal of mercy petitions of all Convicts
• - Unexplained delay is one of grounds for commutation of sentence of death sentence into life imprisonment
• - Further, Convicts due to unbearable mental agony after confirmation of death sentence, attempted suicide
and were suffering from mental illness as confirmed by medical experts
• - Directions of United Nations International Conventions clearly showed that insanity/mental
illness/schizophrenia was crucial supervening circumstance, which should be considered by this Court in
deciding whether in facts and circumstances of case death sentence could be commuted to life imprisonment
• - Convicts made out case for commutation of death sentence to imprisonment for life - Petition allowed.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SRIHARAN ALIAS MURUGAN V. UNION OF INDIA,

AIR 2014 SC 1368
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH, JJ

HELD:

• we commute the death sentence into imprisonment for life.

• Life imprisonment means end of one's life, subject to any remission granted by the appropriate
Government under Section 432 of the Code of Criminal Procedure, 1973 which, in turn, is subject
to the procedural checks mentioned in the said provision and further substantive check in Section
433-A of the Code.
• The clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners
and his family members for commutation of death sentence into life imprisonment,
• The executive should step up and exercise its time-honored tradition of clemency power
guaranteed in the Constitution one-way or the other within a reasonable time.

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AJAY KUMAR PAL V. UNION OF INDIA,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR 2015 SC 715

DIPAK MISRA, ROHINTON FALI NARIMAN AND U.U. LALIT, JJ.
FACTS
•The Accused was convicted of death sentence, in the year 2010, he filed a mercy petition before the President of
India. 3 years later the Prison Authorities received communication from the Ministry that the Mercy petition
was dismissed. The same was informed to the accused a year later in 2014.
•The petition sought commutation on the grounds of inordinate delay in the disposal of the Mercy Petition as
from the very beginning the Petitioner was confined to Solitary confinement in prison as well.
•ISSUE
•Whether delay in execution of death sentence is sufficient ground for Commutation of Death Sentence to Life
Imprisonment?
•JUDGEMENT: the court allowed the petition and commuted death sentence to life imprisonment.
•Right to life and personal liberty is one of the most cherished rights enshrined under Article 21 of the
Constitution. The act of keeping the petitioner in solitary confinement from the day of his conviction was
severe violation of the said right.
•Since his appeals and the mercy petition were still under consideration, he should have been segregated
from the band of Death penalty and treated as a normal prisoner until the Mercy Petition was dismissed or
accepted. Further there is an issue of inordinate delay of 4 years in dismissing the Mercy Petition which is
again a violation of his rights.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

B.A. UMESH V. UNION OF INDIA,

2022 SCC ONLINE SC 1528
(UDAY U. LALIT, C.J. AND S. RAVINDRA BHAT AND P.S. NARASIMHA, JJ.)
• Appellant A convict of rape and murder, after confirmation of death sentence by the S.C.
• preferred a petition seeking mercy on 8.2.2011, it was rejected by the Hon'ble President on
12.5.2013.
• An intimation in that behalf was sent vide letter dated 15.5.2013 to the appellant.
• the Petitioner was kept in solitary confinement for about 11 years. Thus, the law laid down by this Court in Sunil
Batra v. Delhi Administration was violated
• while commuting the death sentence awarded to the appellant, SC imposed upon him sentence of
life imprisonment with a rider that he shall undergo minimum sentence of 30 years and
• if any application for remission is moved on his behalf, the same shall be considered on its own merits
only after he has undergone actual sentence of 30 years.
• If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak
Godse v. State of Maharashtra, AIR 1961 SC 600, the sentence of imprisonment for life shall mean till
the remainder of his life.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

A.G. PERARIVALAN V. TAMIL NADU

2022 SCC ONLINE SC 635
L. NAGESWARA RAO, B.R. GAVAI AND A.S. BOPANNA, JJ.
• The only point that requires to be considered in these Appeals is the correctness of the reference made by
the Governor to the President of India on without taking a decision on the recommendation made by the
State Cabinet on remission of the sentence of the Appellant.
Held:
• No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as
to the source of the Governor's power to refer a recommendation made by the State Cabinet to the
President of India.
• Taking into account the Appellant's prolonged period of incarceration(32 years), his satisfactory conduct in
jail as well as during parole, chronic ailments from his medical records, his educational qualifications
acquired during incarceration and the pendency of his petition under Article 161 for two and a half years
after the recommendation of the State Cabinet, The SC did not consider it fit to remand the matter for the
Governor's consideration.
• In exercise of power under Article 142 of the Constitution, the SC directed that the Appellant is deemed to
have served the sentence in connection with Crime. The Appellant, who was already on bail, was set at
liberty forthwith. His bail bonds were cancelled.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

R.P. RAVICHANDRAN V. STATE OF TAMIL NADU

2022 SCC ONLINE SC 1675
B.R. GAVAI AND B.V. NAGARATHNA, JJ.
THE APPELLANTS HAD BEEN CONVICTED FOR THE ASSASSINATION OF SHRI RA JIV GANDHI, THE FORMER PRIME
MINISTER OF INDIA.

APPELLANTS ROBERT PAYAS, JEYAKUMAR, SUTHENDRARAJA @ SANTHAN, R.P.

RAVICHANDRAN, S. NALINI AND SRIHARAN @ MURUGAN,
• ALL THE APPELLANTS/ APPLICANTS HAD BEEN INCARCERATED FOR THE SAME PERIOD
FOR WHICH A.G. PERARIVALAN WAS INCARCERATED.
• THE CONDUCT OF THE APPELLANTS HAS BEEN FOUND TO BE SATISFACTORY. MOST OF
THEM ARE SUFFERING FROM VARIOUS AILMENTS. ALL OF THEM HAVE UNDERTAKEN
VARIOUS STUDIES DURING THE PERIOD OF INCARCERATION.
• SUPREME COURT DIRECTED THAT ALL THE APPELLANTS/APPLICANTS BE DEEMED TO
• HAVE SERVED THEIR RESPECTIVE SENTENCES IN CONNECTION WITH CRIME NO. 329 OF
1991.
• THE APPELLANTS/APPLICANTS ARE, THEREFORE, DIRECTED TO BE SET AT LIBERTY
FORTHWITH, IF NOT REQUIRED IN ANY OTHER CASE.

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