Pardoning power of President and Governor (TH)

Context: Tamil Nadu Governor Banwarilal Purohit has refrained from taking a call on a plea for the early release of Rajiv Gandhi assassination case convict A.G. Perarivalan. He said the President was the “appropriate competent authority” to deal with Perarivalan’s request for freedom.

Analysis

  • The power to grant pardon, as envisaged in Articles 72 and 161 of Indian Constitution can achieve its aim and object only when they are exercised with a sense of responsibility.
  • The purpose of these powers is to provide a human touch to the judicial process. If this human touch is not exercised properly, the very purpose of mercy provisions is defeated.
  • In Kehar Singh v. Union of India, the Court justified the existence of a ‘Pardon’, by acknowledging the fallibility of human judgment being undeniable even in a supremely legally trained mind and therefore, any such errors can be remedied by entrusting power to a higher authority, which shall “scrutinize the validity of the threatened denial of life or the continued denial of personal liberty.
  • But, the pardoning power of the governor differs from that of the President in following two respects:
  • 1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.
  • 2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor.
  • However, the governor can suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remission and commutation of death sentence.
  • The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles:
  1. The petitioner for mercy has no right to an oral hearing by the President.
  2. The President can examine the evidence afresh and take a view different from the view taken by the court.
  3. The power is to be exercised by the President on the advice of the union cabinet.
  4. The President is not bound to give reasons for his order.
  5. The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
  6. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
  7. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory.
  8. Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition.
  • With respect to the stages at which the various forms of pardoning power can be exercised under the Constitution, the following conclusions have been reached by the Courts:
  1. Pardon can be granted at any stage after commission of the offence, that is, before or after conviction.
  2. Pardon can be granted during pendency of an appeal to a higher court.
  3. A sentence cannot be suspended during pendency of appeal to the Supreme Court.
  • In Devender Pal Singh Bhullar v. State (NCT) of Delhi, the Court held that if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone, only after satisfying that the delay was not caused at the instance of the accused himself.
  • However, the Court held that when the accused are convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of sentence.

Process of making a mercy petition:

  • There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President.
  • The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.
  • A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court.
  • The Home Ministry in consultation with the concerned State Government discusses the merits of the petition. After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President for his decision.

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