The concept of pardoning power is an essential feature of modern constitutions, providing a mechanism for checks and balances within government organs. In India, Articles 72 and 161 of the Constitution vest this power in the President and Governors respectively. This power must be exercised with responsibility and justice to ensure that the principles of equity and human touch in the judicial process are upheld. This article critically analyzes the scope and limitations of the pardoning power of the President and Governor in India, comparing it with international practices.
The concept of pardoning power originated from English kings, who had the absolute authority to pardon offenses. Known as the "prerogative of mercy," this power first emerged in the 7th century. Over time, the use of this power evolved, becoming an essential part of democratic governance. The framers of the Indian Constitution incorporated this concept, granting similar powers to the President and Governors within their respective jurisdictions.
In addition to pardoning, the President and Governors have several related powers:
Article 72 of the Indian Constitution grants the President the power to grant pardons, reprieves, respites, remissions, or commute sentences in cases:
Presidents have historically exercised this power with varying frequencies. Notably, President Pratibha Patil granted a record 30 pardons during her tenure.
Key Case: Maru Ram v. Union of India (1981)
The Supreme Court held that the President's power under Article 72 is exercised on the advice of the central government, binding the President to act in accordance with that advice.
Key Case: Kehar Singh v. Union of India (1989)
The Court emphasized that while the President's decision under Article 72 can be subjected to judicial review, the scope of such review is limited to ensuring that the power was not exercised arbitrarily or malafide.
Article 161 grants similar powers to the Governors for offenses against laws concerning matters to which the state's executive power extends. The Governor's pardoning power, however, does not extend to death sentences.
Key Distinction:
While both the President and Governors have pardoning powers, they are exercised within different scopes of jurisdiction and constitutional hierarchies. The Governor's power is confined to state laws, while the President's power extends to union laws and includes court-martial cases and death sentences.
Article II, Section 2 of the U.S. Constitution grants the President the power to grant pardons and reprieves, except in cases of impeachment. This power has been subject to judicial scrutiny, ensuring it does not infringe upon constitutional rights.
Key Case: Burdick v. United States (1915)
The Supreme Court upheld an individual's right to refuse a presidential pardon, reinforcing the principle that a pardon cannot be imposed against the will of the recipient.
The UK’s unwritten constitution historically vested the pardoning power in the monarch, now exercised on the advice of the Home Secretary. Judicial review of pardons in the UK is limited but available in cases of unrestrained or unjustified pardons.
The primary objective of the pardoning power is to rectify potential judicial errors and provide relief in cases where the punishment is deemed excessive or unjust. This power serves as a necessary tool for public welfare, ensuring that justice and mercy coexist within the legal system.
While the power to pardon is an executive prerogative, its exercise is subject to judicial review to prevent misuse or arbitrary application. The Supreme Court of India has consistently held that the manner of exercising this power can be scrutinized, ensuring it aligns with the principles of fairness and justice.
Key Case: Jagdish v. State of Madhya Pradesh
The Court reiterated that the power of pardon must be exercised based on executive advice, emphasizing that it cannot be arbitrary or malafide.
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