President Has No Role To Play In Perarivalan’s Plea, Says Supreme Court : Daily Current Affairs

Relevance: GS-2: Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies.

Key Phrases: Article 72, Article 161, finer cannons of constitutionalism, pardons, reprieves, respites, remission, Court Martial, Commutation.

Why in News?

Recently the Supreme Court in its judgement has disagreed with the Central government’s suggestion that the court should wait till the President took a call on Rajiv Gandhi’s assassination case convict A.G. Perarivalan’s mercy plea referred to him by the Tamil Nadu Governor for a decision.
A Bench of Supreme Court Justices stated that the Centre had missed the pertinent question that whether the Governor had, in the first place, the authority under Article 161 to refer the mercy plea to the President.

Pardoning Power of The President in India:

The President under Article 72 of the constitution 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-
- In all cases where the punishment or sentence is by a Court-martial;
- In all cases where the punishment or sentence for an offence against any law relating to a matter to which the executive power of the Union extends;
- In all cases where the sentence is a sentence of death.
However, The President cannot exercise his power of pardon independent of the government.
Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once.
If the Council of Ministers decides against any change, the President has no option but to accept it.

Pardoning Power of The Governor:

Article 161: 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.

Difference Between Pardoning Powers of President and Governor:

The scope of the pardoning power of the President is wider than the pardoning power of the Governor which differs in the following two ways:
- Court Martial: 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.
- Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Role of Home Ministry:

In deciding mercy petitions, the recommendation of the Ministry of Home Affairs (MHA) is viewed as the opinion of the council of ministers.
Such a petition is sent to the MHA for consideration which then consults the concerned State Government.
After the consultation, recommendations are made by the Home Minister and the petition is sent back to the President.
The president cannot overrule the ministry’s advice.

(Article 161 empowers the Governor to grant pardons)

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 with a lighter form of punishment. E.g. death sentence may be commuted to rigorous imprisonment.
Remission: It implies reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for five 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.

Supreme Court Judgements on Pardoning Power:

Maru Ram v Union of India (1980) Case: It was held by the SC that Article 72 is to be exercised on the advice of central and state governments.
Ranga-Billa (1981) Case: The petitioner challenged the rejection of the mercy petition by the President without citing a reason. SC dismissed the petition and held that the word “mercy” in itself signifies its discretionary nature.
Swaran Singh vs State of U.P. & Ors (1998) Case: SC interfered with the Governor who granted mercy to a person convicted under charges of murder. The SC held that the order passed under Article 161 is absolute but “if such power has been exercised arbitrarily, mala-fide or in absolute disregard of the “finer cannons of constitutionalism”, then the order cannot be granted and should be scrutinized by the court.
Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors (2006) Case: It was held that a limited judicial review of the exercise of pardoning power is available to SC and pardoning grant can be challenged if it is done with mala-fide order, based on irrelevant considerations, or suffering from arbitrariness.
Shatrugan Chouhan v. Union of India 2014: Undue delay would entitle the death convict to seek relief under Article 32 read with Article 21 to get his death sentence commuted.
- The inordinate delay caused due to circumstances beyond the control of the death convict and which is caused by the authorities for no reasonable ground”, the court should itself commute the sentence rather than “remanding the matter for reconsideration of mercy petition”.

Global View On Presidential Pardoning:

USA: According to U.S. Constitution, the President can grant pardon except in the cases of impeachment. Unlike Indian President the American President has absolute power, such power cannot be questioned or blocked by the court or the congress. There is no question of any judicial review.
Pakistan: Pakistan’s Constitution accords the President with an absolute power to grant pardon, reprieve, respite and remit, suspend or commute any sentence passed by any court, tribunal or authority. The power cannot be questioned.
France: Pardon and act of clemency are granted by President of France who has the sole discretion and power is non-questionable and absolute.
Germany: The German President has pardoning power which he can transfer to someone else such as the chancellor or the minister of justice.
Russia: An absolute power of pardon is given to the Russian President.

Way Forward:

Pardoning power of the executive is very significant as it corrects the errors in the judicial process. The timely disposal of mercy petition is a boon. To ensure that the government have to fix the time frame and create certain binding conditions to exercise the Mercy petition. This will facilitate the smooth functioning of Indian democracy.
Undue, inordinate and unreasonable delay in execution of death sentence has dehumanizing effects.
The mercy petitions under Article 72/161 should be disposed of at a much faster pace than what is adopted now if the due procedure prescribed by law is followed verbatim.

Sources: The Hindu

Mains Question:

Q.Explain the pardoning powers exercised by the Indian President and compare these powers with the governor and with the global view on Presidential pardoning? Support your answer with relevant judgements.