Constitutional Philosophy of Pardoning Power
In the Constitution of India, the power of Presidential Pardon is found in Article 721. It empowers the President to grant pardons, reprieves, respites or remissions of punishment in all cases where the punishment is for an offense against any law to which the executive power of the union extends. The same is also available against sentences of courts-martial and sentences of death. A parallel power is given to the Governor of a state under Article 1612 of the Indian Constitution. A pardon may be absolute or conditional. It may be exercised at any time either before legal proceedings are taken or during their pendency or after conviction. The rejection of one clemency petition does not exhaust the pardoning power of the president.
The Supreme Court has held in Maru Ram and Kehar Singh that the power under Articles 72 and 161 of the Constitution is to be exercised by the Central and the State Governments and not by the President or Governor on their own.
While reading the letter written to Governor of Maharashtra for pardoning Actor Sanjay Dutt I ponder upon these lines “Governor can grant pardon/reduce the sentence. For example in the case of Commander Nanavati who was held guilty of murder, the Governor gave him pardon although the minimum sentence for murder is life sentence.”
The brief facts of Nanavati3 case were:
Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia (wife of Nanvati), which culminated in illicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja entered his bed-room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he was committed to the Sessions for facing a charge under s. 302 of the Indian Penal code4. But later Nanvati received pardon from Governor.
The case of Sanjay Dutt is totally different. Bombay blasts, 1993 resulted in over 250 fatalities and 700 injuries5. The Supreme Court, having found that Sanjay Dutt had in his possession a prohibited weapon without a licence, awarded him the minimum imprisonment which was prescribed under law. From above it is clear that Nanavati case and Sanjay Dutt case was totally different.
Dicey’s Rule of Law
Dicey said: “It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the ‘administrative law’ (droit administratif) or the ‘administrative tribunals’ (tribunaux administratifs) of France. The notion which lies at the bottom of the ‘administrative law’ known to foreign countries is, that affairs or disputes in which the Government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.”
Nanavati case involved no question about Dicey’s Rule of Law, nor even of the rule of law, because the Governor did not claim the power to act without the authority of law. The question was whether the suspension of Nanavati’s sentence by the Governor under Art. 161, which expressly conferred on him the power to grant reprive or respite, was valid in law. The majority held that it was not, because according to the majority the power of the Governor did not extend to suspending the sentence after the Supreme Court had admitted an appeal from it. Sinha, C.J. observed that to uphold the power of the Governor to suspend the sentence would involve a conflict between the executive and the judiciary, for an order of the Supreme Court releasing an accused on a bail of Rs. 10,000 could be nullified by obtaining a simple order of suspension from the Governor:
“Avoidance of such a possible conflict will incidentally prevent any invasion of the rule of law which is the very foundation of our Constitution.”
Judicial power to try and punish an accused person and the executive power to exercise clemancy and to pardon the accused, or to commute or remit his punishment, or to suspend his sentence by a reprive or respite, is part of our Constitutional scheme. The power to pardon, said Taft C.J., exists to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special purposes. It requires no argument to show that occasionally miscarriage of justice does take place; that occasionally a judge enters the arena of conflict and his vision is blinded by the dust of controversy. Among other reasons, the power of pardon exists to remedy the miscarriage of justice or to remedy the consequence of human failings in a judge. Such miscarriage can take place in passing a sentence of death; it can take place equally in keeping an appellant in prison by refusing him bail. The Rule of Law, like the name of God, can sometimes be invoked in vain.
(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
161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 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
Whoever commits murder shall be punished with death, or 1[imprisonment for life] and shall also be liable to fine.
About the Author
Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a book titled – Be Your Own Lawyer.