The Conversation - VI (On Presidential power to pardon, remit, commute punishments. ...)

Avinash: I'm sure you 've heard by now that our President has allowed mercy petitions of a pretty large number of hardcore convicts. They will no more walk to the gallows.

Me: Yes, I'm aware of that and she's already being called the "Most Merciful President".

Avinash: I don't know whether this is mercy per se or something else but I just can't digest this sudden attempt at being an apostle of peace.

Me: Why what's wrong ?

Avinash: Well, what's is wrong is the fact that her acts have completely betrayed the aspirations and expectations of the victims. The people who've suffered at the hands of those whose death sentences have been commuted, what would you tell them ?

Me: Listen my friend, the President of our country is well within her rights to commute any punishment or even pardon any person undergoing his / her punishment, including the ones who are awaiting death penalty.

Avinash: I'd really like to know the law regarding this particular issue.

Me: Well, Article 72 of the Indian Constitution says that

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

Similarly, corresponding powers have also been extended to the Governor (who is the Head of the State Executive as the President is of the Union Executive) under Article 161 of our Constitution which says that

The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends

Avinash: Could you please elucidate the terms such as reprieve, remission etc ?

Me: Pardon completely absolves the guilt of the offender
       Reprieve means temporary suspension of the sentence
       Respite denotes awarding a lesser sentence on special ground
       Remission reducing the amount of sentence without changing its character
       Commutation means substitution of one form a punishment for another form which is of a lighter 

       character.
(e.g. - commuting death sentence to life imprisonment)

 Unlike the President of India, the Governor of any State cannot pardon death sentence nor do the latter's powers extend to punishments of a Court Martial.

Avinash: Well, arguably our Constitution is one of the best written Constitutions of the world. But if you honestly ask me, I am not quite sold to this idea of pardoning, even after the highest Court of the country has considered one deserving of punishment, especially the death penalty.

Me: I agree with you because of the reason that the death penalty is not inflicted unless the crime falls within the category of "rarest of rare cases". Now what is rarest of rare case has been laid down and reiterated time and again by the Hon'ble Supreme Court in various of its judgments. To put it very shortly, rarest of rare case is one where the crime is so heinous, dastardly and cold blooded, that taking the life of the convict is the only befitting legal response. Therefore as such, it is very difficult to sustain a death penalty in our country. So when a death penalty is inflicted and the Hon'ble Supreme Court upholds its infliction, it's to be understood that the criminal has committed such ghastly & cold blooded acts that the victim can be vindicated only by taking away the former's life. I must tell you that the convict must have done those acts deliberately, being fully aware of its consequences. Otherwise he cannot be technically called guilty. 

Avinash:  Exactly. Do you know that one Sushil Murmu, who was convicted for giving 'bali' (sacrifice) of a nineyear-old-boy in Jharkhand for his own prosperity. He was awarded the death sentence by all the successive Courts where he went in appeal after appeal. It's devastating to know that Murmu's sentence, has also been commuted even though his crime was termed by the Supreme Court as "an illustrative and most exemplary case to be treated as the 'rarest of rare cases' in which death is and should be the rule, with no exception whatsoever."

Me: I know I know. Please do not think that I'm blindly supporting the actions of our President. But then the thing is that there is nothing legally wrong in what the President has done. Our system of Presidency is built on the edifice of the British monarchial trends. Where the President is only the nominal head. He cannot do anything without or beyond the aid and advice of the council of ministers (cabinet). The law is quite interesting in this aspect and I think you should hear it.

Avinash: Yeah please

Me: Article 74 of our Constitution says that 

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Thus it is amply clear that the President is bound to act in accordance with the advice of the council of ministers because of the term "shall" used in Article 74. This was not how Article 74 was initially. Before the 42nd amendment, Article 74(1) stated that, "there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions". However, there was a slight ambiguity whether the advice of the Council of Ministers is binding on the PresidentForty-second Amendment of the 42nd Constitutional Amendment (1976) made it explicit that the President shall, "act in accordance with such advice". The amendment went into effect from 3 January 1977.

The 44th Amendment (1978) however added that the President can send the advice back for reconsideration once. But if the Council of Ministers sends the same advice again to the President then the President must accept it. The amendment went into effect from 20 June 1979

So you see even if the President is not in agreement with what the council has recommended, law only accords him the chance to send back only once to the council for reconsideration. But whatever the council of ministers advises thereafter, the President is bound to follow, even if he doesn't approve of it.
 That's why our President is often referred to as the nominal head of our country, the real head (s) being somewhere else.

Avinash: This means that if by extraneous political considerations, a particular party in power decides to free a man, seriously guilty, or likewise make a person suffer if its in its interest to do so, then it can do so through the President?

Me: Absolutely. I'm not making any claim but I think that may be a reason why the clemency (mercy) petition of all the three Rajiv Gandhi assasins has been rejected, besides that of two others by our present President. The convicts whose death sentences have been commuted to life term were found guilty of barbarically murdering 60 persons by the Supreme Court. 22 of those killed were women and children.

Avinash: Come on. Please tell me there's a catch here.

Me: Actually there is. Today the issue is fairly well settled by the decision of the Hon'ble Supreme Court in the case of Epuru Sudhakar & Anr. Vs. Govt. of A.P. & Ors.(2006) where the immunity of the pardoning power of governor from judicial review was considered. The Supreme Court set aside a decision of  the then Andhra Pradesh Governor Sushil Kumar Shinde, who had remitted the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist. The Supreme Court bench of Justices S H Kapadia and Justice Arijit Pasayat warned that the exercise of the power would be tested by the court against the maintenance of Rule of Law. The Supreme Court has cautioned

“Rule of Law is the basis for evaluation of all decisions (by the court)... That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent,” 

So now the fairly settled legal position is that the exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or wholly irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness

Justice Kapadia, while concurring with the main ruling delivered by Justice Pasayat, sought to remind 


“exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty... the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. ..An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are fraught with discrimination,”


Similarly in the year 2010 the Supreme Court has ruled that

Remission (reduction of sentence) or pardon granted to life convicts by the president or a governor will be open for judicial review if such mercy is extended to “privileged class deviants” arbitrarily and with mala fide intentions. But exceptional circumstances, such as a convict suffering from an incurable disease at its last stage, may warrant release from prison at a much early stage. 

Cautioning the executive against liberally exercising the power of remission or pardon, a bench of the then Chief Justice of India KG Balakrishnan, and Justices J.M. Panchal and B.S. Chauhan pronounced that

 "The exercise of clemency could be a “grand farce” if used as a “facility” and “an incentive to crime”. No convict should be a “favoured recipient” of clemency, the bench said, hastening to add that liberty is one of the most cherished possessions of a human being and she or he would resist forcefully any attempt to diminish it."


Avinash: See, I was sure that there would be a rider. I had a feeling that ultimately the Supreme Court would never sit by and watch such arbitrary exercise of power by one person in a democracy.

Me: My friend, please understand that there is nothing arbitrary in an action, if its source is written law. The law gives that liberty to our President and it even does not require her to give any reason for granting or not granting pardon, remission, commutation etc. If you see in other major countries like Germany, France, Russia, United States of America the President is armed with absolute and non questionable power of pardon. But our Constitutional framers in their wisdom thought it better to divest absoluteness from the President in this regard and  rested its responsibility with the council of ministers who shall appropriately advise the President in such matters. Their intention seems to have been to prevent vesting of great authority in the hands of a single man and sharing its responsibility to a larger group of people who enjoy the support of people who have elected them to the Parliament. But that expectation seems to have gone for a toss.

Avinash: Alright, so now can the victims or their family members move the Hon'ble Supreme Court against the pardon /  commutation of their offenders' sentences ?

Me: Why not ? One has to wait and watch if they do so and the Supreme Court's verdict thereupon.


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