Scope and Exercise of Power of Clemency and Judicial Review: A Jurisprudential Analysis – By Chirag Madan and G. Sai Krishna Kumar

06 Aug- 2022, by: LegitEye

I. INTRODUCTION

Human beings organized themselves into a civilized society. They established the State bestowing with it the power of collecting taxes, policing, defending and to enforce civil contracts. The king was the supreme law giver and had the state machineries to enforce laws, by awarding punishment against crimes. With no idea of why crimes are committed, only the retributive and deterrence theories were offered as justification for punishment. All crimes committed were assigned punishment usually greater than the magnitude of the offence committed to instill fear in prospective criminals and deter them from following the footsteps of the criminal. The theory of retribution hence fulfilled a twin purpose: punishment to the offender along with a lesson of deterrence to like-minded individuals. The degree of retribution or punishment varied according to the gravity of the crime. Some crimes were let off with a fine while others were dealt with mild to strong sentences, some extending to lifetime. The gravest punishment for the gravest offence was death sentence or capital punishment. Such punishments given were full and final. However, it came to be accepted that the punishment made by the king could be modified or cancelled by him.

The judicial system of criminal proceeding, the evidence act, the standard of proof being beyond reasonable doubt, discretion of sentencing being left to the judge etc. were adopted in India during the long period of British Rule. The principle that ‘all crime is local’ is embodied in the criminal law in India[1]. A series of judicial reforms which included the enactment of Indian penal code, 1860, Indian evidence act 1872, and the earlier code of criminal procedure took place. The concept of clemency is too attributable to the British rule. The government of India act, 1935[2] expressly provided in Section 295 the power of clemency, vested in the Governor General, being the representative of the Crown.

The makers of the Indian Constitution had no plan or intent of removing the power of pardon/clemency. So, there was no formidable debate on the existence of this power and its entry was allowed into the Constitution with minor modifications. The Indian law was to retain all kinds of punishment, except transportation. Capital punishment was allowed to be retained. The power of Clemency was retained as some kind of reserve power, probably with a view to provide for checks and balances.

II. CONSTITUTIONAL POWER OF PRESIDENT AND GOVERNOR

The power of Clemency has been conferred upon the President of India and the Governors of the States by Articles 72 and 161 of the Constitution of India[3] respectively.

Article 72 reads as follows:

“72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

Article 161 reads as follows:

“161. Power of Governor to grant pardon etc., and to suspend, remit, or commute sentences in certain cases.

Both the above-quoted Articles are to be read together with certain other articles in order to get the essence and extent of the power of Clemency enshrined in the Constitution. The executive power of the union and the state are to be seen from articles 73 and 162 of the Constitution, while the occasion to exercise such power arises only on the aid and advice of the respective council of ministers, as provided in Articles 74 and 163 of the Constitution.

Though the articles 72 and 161 are similarly worded, the areas of exercising these powers of pardon are clearly demarcated, as the executive powers of the state and the union governments have been demarcated. The power of Clemency by the head of state, except in the case of death sentence, would rest with either the President or the Governor, but not both. In reality, the question of overlap of clemency power between the President and the Governor in case of death sentence remained an academic issue, as there was no state law, referable to list-II of the seventh schedule, providing for death penalty, until the Maharashtra Control of Organized Crime Act, 1999 (MCOCA)[4] was enacted.

The distinction between the powers of the President and the Governor are obvious, and the reasons for which are easily fathomable. In the case of a punishment by a Court-martial, providing for judicial trial for misconduct and offences under the acts of parliament relating to the Army, the Navy, and the Air force, the power of clemency is with the officers concerned, and in addition, the President gets constitutional powers. The states do not deal with defense of the country, and obviously, the Governors could not be vested with power of clemency in such cases.

The Statutes, such as the Indian penal code, 1860, the prisons act, 1894, and the code of criminal procedure code, 1973 provide for differential treatment in the case of post-conviction good behavior by the prisoners. These powers are exercisable by functionaries of the state government [except in case where the Delhi Special Police Establishment (Central Bureau of Investigation) has conducted the prosecution], and are saved by the Constitution itself.

III. ANALYSIS OF ARTICLE 72 OF THE CONSTITUTION OF INDIA

A plain reading of Article 72[5] reveals that ―

(a) the extent of clemency jurisdiction of President extends to matters falling within the executive power of the union, and to all cases of death sentences, even if it falls within the executive power of any state; and

(b) it is of non-exclusive nature, i.e., it does not purport to derogate from statutory powers of clemency vested with the functionaries of the Union (such as Court martial) or the State, even if the case would otherwise fall within the clemency jurisdiction of the President.

The cases in which the power of clemency of the President can be exercised are in relation to “any person convicted of any offence” of the description given in the enacting provisions. Clemency is exercisable against “punishment” or “sentence”. While, in criminal law, punishment is imposed by medium of sentence, and the Court martials also issue a formal sentence to impose punishment which could even be forfeiture of seniority or pay and allowances (See Chapter VII, of say, Air Force Act, 1950[6]) apart from the kinds of punishment provided for under the Indian Penal Code.

Any act of Clemency may be either absolute or conditional. It is conditional where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event happens. The Supreme Court has observed that the difference between a reprieve and respite is too technical and practically the effect of both of them is the same, i.e., the execution of the sentence is postponed to a future date.

IV. STATUTORY POWER OF CLEMENCY

The Statutory powers of Clemency are to be found in the Army act, Navy act, and Air force act, 1950 in respect of court martial and the Code of Criminal Procedure, 1973 for Civilian offences. As noted above, these are not affected by the Articles 72 and 161 of the Constitution.

To keep the discussion concise, only the provisions of the Air Force act, 1950 in relation to powers of Clemency are cited. Chapter XIV of the Air Force Act, 1950[7] [covering Sections 177 to 188] deals with “Pardons, Remission and Suspensions”.

The kinds of relief that can be granted fall within the following defined Terminologies:

Pardon:–The convict is absolved completely, and restored to the position before he was even charged with the offence. It releases the convict from the guilt as well as the punishment and restores all his social rights.

Reprieve: – Reprieve gives the prisoner an opportunity to find a means or reason for reducing the sentence imposed or to secure a pardon. It is a moratorium on the execution of sentence.

Respite: – A suspension of a sentence, which is to be executed at a future time.

Suspend: – A suspension of a sentence, which is to be executed at a future time.

Remission:–Reduction of the amount of punishment without changing its character.

Commutation: – Substitution of punishment of one form for another of lighter character.

V. MANNER AND EXERCISE OF POWER UNDER THE ARTICLE 72

In a Parliamentary form of Government, the head of the state functions on the aid and advise of the council of Ministers. The controversy has been set to rest after the enactment of the 42^nd and 44^th Amendment Acts[8], in respect of the President. Also, the Hon’ble Supreme Court in MaruRam Vs Union of India [9] has left no doubt about the role of the President and Governor in matters of Clemency. It held:

“The President is symbolic; the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor’s approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. …”

The power of clemency is a Constitutional power, falling outside the definitions of the usual triad of executive, legislative and judicial nature of State power. In fact, the higher Court too has the power to suspend or reduce the sentence or to acquit the person convicted by a lower Court; but such is not the case with the exercise of power of Clemency. The judicial record is not altered upon exercise of the power of Clemency; thus it is not a judicial power. That it is not an executive power would be clear from a reading of Articles 72 and 73 of the Constitution; and had it been executive power, it would have been covered by the provisions of Article 73 of the Constitution itself, which defines the extent of such executive power. This is a unique extraordinary power, and is bound only by limitations arising from other provisions of the Constitution (such as Part III). It being a function to be exercised by the President or Governor, it is subject to judicial review, by virtue of Articles 53 and 154 of the Constitution.

VI. PRESIDENTS AND CLEMENCY PETITIONS – INDIAN PERSPECTIVE

Tracing the trends of “mercy” in mercy petitions post independence, India has come a long way but only downhill. With the first President, Dr. Rajendra Prasad commuting 180 out of 181 mercy petitions, the recent president, while leaving office, rejected 90% of the mercy petitions. For the sake of brevity, it would be convenient to only cover highs and lows in the trends in mercy petitions.

The period where mercy petitions hardly saw any mercy was that of President Venkataraman who left office of President disposing of 40 petitions; all rejected. K R Nayaranan, adopting a dormant policy, disposed of 0 petitions during his tenure. The only President, in the latter half of independence, to take an active role in granting clemency was Smt. Pratibha Patil, commuting 19 out of 22 petitions before retiring.

The policy followed by the executive has, however, largely been that of non-interference or rejection in the recent years. The misnomer “mercy petition” has been criticised by many as non-reflective of the pattern followed. The number of mercy petitions, however, went down post 1980 after the Bachan Singh [10] dictum which provided awarding of death sentence in “rarest of rare” cases. With that, life imprisonment became the rule and capital punishment an exception and a similar amended affecting the same was brought about in the CrPC.

The Law Commission in its 2015 report noted the influence a president has on deciding mercy petitions, saying, “A perusal of the chart of mercy petitions disposed by Presidents suggests that a death-row convict’s fate in matters of life and death may not only depend on the ideology and views of the government of the day but also on the personal views and belief systems of the President.”[11]

Thus, with every President the fate of the applicant becomes solely depended not on any specific rules binding the executive but on the call taken by the President on the aid and advice of the Council of ministers.

A bare reading of Article 72 provides that no time period for disposing of a mercy petition has been prescribed by the Constitution makers. The absence of this provision has provided the Presidents with an unrestricted period to sit on petitions, leaving the death row convicts in limbo. Parliament attack convict, Afzal Guru for instance had to undergo a period of 5 years before his petition was decided, making a disappointed statement while in solitary confinement he said, “I really wish L.K. Advani becomes India’s next prime minister as he is the only one who can take a decision and hang me. At least my pain and daily suffering would ease then.”[12]

Similar inordinate delay was faced by the convicts in the Rajiv Gandhi assassination case, facing a total of 11 years in a period of cluelessness. [13]

It is argued that trauma of being hanged or pardoned, marked by a period of uncertainty along with conditions of solitary confinement create a harsh impact on the mental and physical health of the convict, and this period has often been termed as “death row phenomenon” called by many as degrading to human life.

The government contended that the court cannot prescribe a period for deciding such petitions as the same goes against the letter of law as provided in Article 72 & 161 of the Constitution. (This was in response to the judgement delivered by the Supreme Court in Sher Singh’s [14] case, laying down that the executive must follow a self-imposed rule and all petitions must be disposed of expeditiously within a period of 3 months of receipt).

The court similarly took a note of cruelty embedded in such lengthy delays in Jagdish v State of MP [15], as being aggravative of the already existing severe conditions. It cited a US Supreme Court judgement which observed, “the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution. The prospects of pending executions exacts a frightful toll during the inevitable long wait between the imposition of the sentence and the actual infliction of death.”[16]

In K. M. Nanavati v. State of Maharashtra[17], the Supreme Court held that though it would be open to the President or Governor to grant pardon at any time, it ought not to be exercised after the convict has approached the appellate Court for proving his innocence, in which case it would be within the power of the appellate Court to suspend the execution of the sentence.

The contrary question is whether the Courts could have any jurisdiction when the President or Governor is in seisin of a Petition for Clemency. It may be noted that the question is now not of the Applicant proving his innocence, it is only about reduction of the rigours of a sentence which has otherwise attained finality. Therefore, the narrow compass is that the consideration of the Clemency Petition being a function of the President or Governor, whether such function has been performed, or not performed, in accordance with the Constitution.

The Supreme Court has in several cases, commuted death sentences into sentences of life imprisonment, on account of the delay in disposal of the Petitions for Clemency. It held that the constant suspense about the fate of the convict, due for execution but for the pendency of the Petition for clemency operates in a harsh and burdensome manner and affects his basic human rights, referable to Article 21 of the Constitution.

The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu [18], held that a delay of two years in disposing of a Clemency Petition was a good ground to commute a sentence of death to one of life imprisonment. However, very soon thereafter, a three-judge Bench in Sher Singh v. Union of India[19], over-ruled the view in Vatheeswaran (supra) and held that delay alone is not a good ground for commutation. The Constitution Bench in Triveniben v. State of Gujarat[20], held that ‘inordinate delay’ would, considering the pain caused to the convict, entitle the Petitioner to have his death sentence commuted to one of life sentence. However, the Court refused to fix any time-limit for disposal of Clemency Petition.

The Supreme Court commuted the death sentences of three convicts in the Rajiv Gandhi murder case into those of life sentence, holding that the delay of about eleven years in disposal of the Clemency Petition was ‘inordinate’. Soon thereafter, the power to release the prisoners, under Sections 432, 433 and 433A, as they had served about 21 years, more than the statutory minimum of fourteen years, was sought to be exercised by the State Government. However, the case having been dealt with by the Central Bureau of Investigation, the Central Government claimed the power of remission/ release to itself and that the State stood denuded of its power.

VII. SCOPE OF JUDICIAL REVIEW ON POWER OF PARDON

The Merriam Webster Dictionary of law says that judicial review is the power of a court to review the action of public sector bodies in terms of their Constitutionality in some jurisdiction; it is also possible to review the Constitutionality of law itself[21].

The power of judicial review, which has indeed been held as part of the inviolable basic structure of the Constitution, is traced to multiple sources: Articles 13, 32, and 226, and Articles 53 and 154 of the Constitution[22], as regards exercise of power generally by the Central and the State Government.

Judicial review in India can be broadly divided into judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action.

The contours within which judicial review is performed by the Courts is laid down in Tata Cellular v. Union of India [23].

In Epuru Sudhakar v. Government of Andhra Pradesh[24], the Supreme Court struck down the grant of remission to the convict for the reason that he was a good worker of a particular political party that had recently been returned to power in the General Elections. It approved the law stated by the United States Supreme Court in Biddle v. Vuco Perovich[25] and Burdick v. United States[26], that

“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.”

The decision of the President or the Governor under Article 72 or Article 161 are open to judicial review, if the Petitioner can make out any of the following grounds:

The question whether the President or Governor is bound to give reasons for the decision was discussed by the Supreme Court in Kehar Singh v. Union of India[27], and it was held that: “There is no question involved in the case of asking for reasons for the President’s Order”. However, this observation was explained in Epuru Sudhakar (supra) as follows:

“The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order”.

As may be seen from the above, earlier the Supreme Court was of the opinion that if the President gives no reason whether for accepting or rejecting clemency petitions, the Court could not review. If the President or Governor came forward with reasons, they would subject to judicial review. However, with changing trends, the Supreme Court has now held that guiding principle in Public Interest is that there must be a reason to support the view that clemency must be exercised.

VIII. GLOBAL SCENARIO OF POWER OF CLEMENCY

In the United Kingdom, the Monarch (“Crown”) exercises the power of Clemency on the advice of the Home Secretary, the Governors of colonies and the Governors-General of the dominions. The power of Clemency is usually invoked after the final decision of the case is rendered by the judiciary. A report of the U.K. Royal Commission has observed that should the Home Secretary be of the opinion, notwithstanding the verdict of the jury, that there is a ‘scintilla of doubt’ about the prisoner’s guilt, the power of Clemency could be exercised. This would seem to be flowing straight from an acknowledgement of the fallibility of the judicial process. However, the power is subjected to Judicial Review.

As per Article II (2) of the Constitution of the United States of America[28], the President has been vested with power of Clemency. However, it does not extend to cases of impeachment (which usually results in ouster from the Office held). Although it is subject to judicial review the courts have confined themselves to cases of gross misuse.

In Canada, the Governor General of Canada has been vested with the power of Clemency by virtue of the letters patent and as set out in specific Sections (Ss. 748 and 749) of the Criminal Code of Canada[29].

In Nigeria, the President has powers to pardon, or wholly or in part, commute, or remit any punishment or of any penalty or forfeiture, in respect of offences created by the Acts of National Assembly. The powers of the President shall be exercised by him after consultation with the Council of State.

IX. CONCLUSION

The above discussion shows that Power of Clemency is not an act of private grace, but is to be used only in Public Interest. Whether or not reasons are expressly given in the Order, there must be reasons to show that Public Interest is involved in exercising the power of clemency for the case of a particular convict.

The authors are uncomfortable with the idea of the power of clemency being one based on the theory of “Rectification of judicial error”. If that were true in a criminal case, the same would be true of all civil cases as well as constitutional cases. In fact, cases are not unknown where the judgments of Constitution Benches have been upturned by subsequent Constitution benches. If there should be scope with the Executive to mitigate or correct a judicial error, then the question why such power should not be extended to the sphere of constitutional law. Thus, as it is not permissible for the Executive to interfere with a judicial pronouncement, however harsh its effect might be, the power of the Executive in the sphere of Clemency ought not to be traced to possibility of judicial error.

Factors that can be taken into consideration for determining public interest are not to be put in straight jacket. They demand circumstantial flexibility. From the literature available, it would seem that such considerations may include the following:

(i) Shri H.M. Seervai[30], the noted Constitutional expert has opined that:

“Judges must enforce the laws, whatever they be, and decide according to the best of their Lights; but the laws are not always just and the lights are not always luminous. Nor, again are Judicial methods always adequate to secure Justice. The Power of pardon exists to prevent injustice whether from harsh, unjust laws or from judgments which result in injustice; hence the necessity of vesting that power in an authority other than the judiciary has always been recognized.”

(ii) The Model Jail Manual, prepared by the Indian Prison echelons plus a leading criminologist, Dr. Panakkal, back in 1970, has stated, right at the outset, in its Guiding Principles:

“Social reconstruction and rehabilitation as objectives of punishment attain paramount importance in a Welfare State. The supreme aim of punishment shall be the protection of society. Through the rehabilitation of the offender Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking away from him the right of self-determination. Therefore, the prison system should not except as incidental to justifiable segregation or maintenance of discipline, aggravate the suffering inherent in such a situation. The institution should be a center of correctional treatment, where major emphasis shall be given on the re-education and reformation of the offender. The impacts of institutional environment and treatment shall aim at producing constructive changes in the offender, as would be having profound and lasting effects on his habits, attitudes, approaches and on his total value schemes of life.”

The above discussion shows that the power of clemency is not a bounty from the government to the convicted criminal. It is to be exercised in public interest which may have several ramifications and components. One such component could be judicial fallibility but it is not the justification for clemency.

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Chirag Madan is a practicing advocate and a former junior associate of Mr. Ram Jethmalani.

G. Sai Krishna Kumar is a practicing advocate.

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[1] Munna Lal Vs State, 1964 CriLJ 700.

[2] The Government of India Act, 1935.

[3] INDIA CONST. art 72, art 161.

[4] Maharashtra Control of Organized Crime Act, 1999 (Act No. 30 of 1999).

[5] INDIA CONST. Art 72.

[6] The Air force Act, 1950 (Act of 45 1950).

[7] The Air force Act, 1950 (Act of 45 1950).

[8] THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976, (Bill No. 91 of 1976)