In India, the President by the virtue of the Indian Constitution is the Executive Head. He is empowered with the power to pardon. If this power of President is subjected to judicial review it would be a clear cut encroachment of the judiciary in the executive, and the separation of power is defeated. Generally the punishment dealt herewith is that of the capital punishment. When an act done by a person is penalized by the capital punishment the question arises whether the mercy pleading should be entertained, whether it is moral because generally such punishment in Indian prospective is only given in rarest of the rare cases. The defense given behind is that while every crime is an outrage that is deeply destructive of social and moral fabric, punishment can never undo the harm that has been suffered by the victims and the community. Therefore mercy pleading should be entertained and granted.
PARDONING POWERS OF THE PRESIDENT
The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. Article 72 says that 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 offense. Based on this Article there are 5 types of pardon. They are,
Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
The pardoning power of the President is not an absolute one but is governed by the advice of the Council of Ministers. Now we should think about what would have been the real issue in the mind of the framers of the constitution for not imparting the President an absolute power. One thing should be made clear first that the framers were of the view that there should be a capital punishment and such capital punishment shall be pardoned on grounds of morality after a mercy pleading by the President, it could be said that the framers just wanted to put a check on the power as if the power would have been an absolute it could be possible that a soft hearted President would pardon most of the mercy pleaders, for this it was the council of Ministers who have to review and giver their advice. 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, and that the advice of the Government binds the head of the Republic.
PARDONING POWERS OF THE GOVERNOR
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. The Article 161 deals with the power of the Governor to grant pardons, 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. Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive powers of the State extends.
DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND GOVERNOR
The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways they are The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor. The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.
The biggest question which could be laid down against the conception of Judicial Review of the power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if president grants pardon on some moral and humanitarian ground whether in that case if judicial review is done then how come a judiciary would close its eyes from the previous judgments which it has given right from the lower courts against the pleader. It is more or less clear that it would revoke the pardon and would revert back to it’s final decision. As per my view the judiciary when given a chance to review a pardon should not go by the legal circumstances but it should deal with the moral values.