Pardoning Power of President: Can He Mercy Death Sentence?

In India’s legal framework, the Constitution has significant importance. Article 72 of Indian Constitution is an important provision in the judicial system. Article 72 describes the pardoning power of President of India. This article improves the criminal justice system. Likewise, the article 161 of Indian Constitution, the Art 72 also gives convicts one more chance to return to normal life. Let’s discuss Article 72 of the Indian Constitution in more depth.

What is Pardon?

Before discussing Art 72, we must first know what pardon is. Pardon is the action of forgiveness for an error or offense. Pardoning power of President and governor are mostly similar in nature but there are some more powers vested to the President of India as he is the executive head of the state.

Powers of President of India

The President is the head of the Indian state, and he is entitled to the following powers:

• Executive Powers
• Legislative Powers
• Financial Powers
• Judicial Powers
• Diplomatic Powers
• Military Powers
• Emergency Powers

The Pardoning power of President is laid under the Judicial Powers of the President. Article 72 of Indian Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offense.

History of Article 72 of Indian Constitution

The root of Article 72 is drawn from the Government of India Act 1935. Section 295 of the Government of India Act 1935 contains, “Any person has been sentenced to death in a province, the Governor General in his discretion shall have all such powers of suspension remission or commutation of sentence.
Whereas the Govt. of India Act 1935 did not limit the sovereign’s power, Article 72 under the Indian Constitution ceases the ultimate decision-making power of the President.

When Can the Pardoning Power of President Be Used?

• Punishment or sentence is for a crime against a union law.
• Punishment or sentence is by a military court or Court-martial.
• The sentence is a sentence of death.

Types of Pardoning Power of President

Pardon

It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishment, and disqualifications. It means all charges vested upon a person by the judiciary have been withdrawn, all criminal records will be abolished, and new restrictions and punishment-free life will be gifted to him.

Commutation

It denotes substituting an extreme punishment for a lighter one—a death sentence converted into a rigorous or lifetime imprisonment. Also, thorough imprisonment can be commuted to simple imprisonment.

Remission

In this type, the character of punishment remains the same, but the period of punishment is reduced. For example, a sentence of rigorous imprisonment for two years may be reduced to one year.

Respite

In special circumstances, for example, physical disability or pregnancy, the original sentence awarded to a convict is altered into a lesser form of punishment.

Reprieve

It implies a sentence(especially that of death) awarded by the judiciary is a temporary hold or restrain to give the convict extra time to seek pardon or commutation.

Significance of Pardoning Power of President

Let’s discuss the objective of entitling the President’s judicial powers and the importance of this power in the Indian Judiciary system.

• Mercy Petition is the open door for correcting any judicial errors occurring during the operation of law.
• It is a way out for innocent persons from injustices in the judiciary.
• An afford to relief from a death sentence if the President considers it unduly harsh.

Grounds of Appeal for Pardon

• Only bread earner of the family.
• Age of the convict.
• Physical condition or Mental condition.
• The law was quite harsh.
• Injustice or errors made by the law.

Procedure of Mercy Petition

There is no statutory written procedure for dealing with mercy petitions, but in practice, there are two basic factors regarding the timeline for filing a mercy petition. The method of Mercy Petition is discussed below:

• When a convict has not already submitted the mercy, the petitioner can file a mercy petition immediately seven days after he is informed about the rejection of the special leave petition by the Supreme Court or about the date of confirmation of the death sentence by the high court and the time for special leave or filing an appeal has been expired.
• After the Governor rejects the mercy petition, the convict will get sixty days from the date of rejection to file a mercy petition before the President.

Note: The pleaded for mercy cannot claim an oral leave by the President. Further, where the President has rejected the earlier petition for mercy, there is no choice but to file a second one.

Limitations of Power

Judicial Review

Although the President’s pardon power is broad, it is subject to judicial review. Courts can examine whether the President has acted in accordance with the Constitution and principles of natural justice.

Advice of the Council of Ministers

The President exercises this power based on the advice of the Council of Ministers. So, the President cannot act independently but must follow the advice provided.

Scope and Jurisdiction

The pardon power extends to cases where the punishment or sentence is by a court-martial, cases involving sentences of death, and cases where the punishment is for an offense against any law to which the administrative power of the Union advances. However, there is a limitation: the President cannot intervene in cases under state jurisdiction.

Consistency with Law

The President’s decision must comply with existing laws and cannot contradict statutory requirements or undermine legal processes.

Non-Arbitrary Action

The President’s use of pardoning power must not be arbitrary or discriminatory. Any perceived misuse or abuse of this power can be challenged in court.

These limitations ensure that the President’s power to pardon is exercised fairly and within the framework of the law, maintaining a balance between mercy and justice.

Conclusion

Although many restricted provisions, laws, articles, and structured judiciary systems exist to give justice to an accused person, judicial errors can happen due to a lack of appropriate proof, information, or witnesses. So, Article 72 of Indian Constitution opens a new window to correcting judicial errors.
Whereas the President is not involved in the judicial process and is considered the executive head of the Union, he can make unbiased decisions. So, the Indian Constitution gives him the power.

Source: Google, and Wikipedia

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