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this post is a part of our important question answer series on Constitutional
Law. You can read other questions by clicking here.
Pardon means to forgive a person for the
offence he has done. Under the Indian Constitution, the power to grant pardon
has been conferred on the President of India under article 72 and the Governor
of states under article 161. The object behind pardoning power is to correct
possible judicial errors and miscarriage of justice.
Article 72 empowers the President to grant
pardon, respite or reprieve, or to suspend, commute the sentence of any person
convicted of any offences in any of the following cases:
(a) Where the punishment or sentence is by a
court
(b) Where the sentence or punishment is for an
offence relating to a matter over which the Union’s executive has power and
(c) Where there is death sentence.
There are
5 terminologies used in this article:
A.
Pardon: complete scrapping of
punishment, as one never committed any offence.
B.
Reprieve: stays the execution
of punishment for a Temporary period. usually exercised in delaying the
execution of death sentence to prove his innocence.
C.
Respite: Postponement of
execution of the sentence to the future, or a lesser sentence instead of the
Penalty prescribed.
D.
Remission: To reduce the
punishment without changing the nature of the punishment. For example, 20 years
of rigorous imprisonment to 10 years of rigorous imprisonment.
E.
Commute: change a Punishment to
one of different sort than that originally awarded. For example, Rigorous
imprisonment to simple imprisonment.
Judicial review of advice rendered
by the council of ministers
In
Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that
the power under Article 72 is to be exercised on the advice of the Central
Government and not by the President on his own. The judicial review of the same
can be done, but on the limited grounds, such as:
A.
Grounds which are arbitrary or wholly irrelevant, irrational,
discriminatory or mala fide.
B.
If the power is exercised wholly for the political consideration.
In
Dhananjoy Chatterjee alias Dhana v State of West Bengal, The SC reiterated the
same stand.
In
Kehar Singh case: The Court again considered the nature of the President’s
power under Article 72 while dealing with a petition challenging the
President’s rejection of a mercy petition by Indira Gandhi’s assassin, Kehar
Singh. The Court explicitly held that ‘Article 72 falls squarely within the
judicial domain and can be examined by the court by way of judicial review.’
The court followed the principle laid down in Maru Ram V. UOI case.
Now,
it is a well settled principle that power under Articles 72 and 161 is some an
extent, subject to judicial review.
Other landmark cases
i.
Kedar Singh vs Union of India [1989:
In this case, Court held that Pardoning power
is an act of grace and not a matter of right. It is administrative power and
not justifiable in the court of law.
ii.
In case of Nanawati V. state of Maharashtra:
it was
held that the President can exercise the judicial powers at any stage, which
means before, during, or after trial.
iii.
Ranga Billa case:
A writ petition filed in the Supreme Court
challenging the discretion of the President to grant pardon on the ground that
no reasons were given for rejection of his mercy petition. The court dismissed
the petition and observed that the grant of pardon by the President is an act
of grace and, therefore, cannot be claimed as a matter of right, and it is not
necessary to convey the reasons of rejection of the same.
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