Updated: Nov 22, 2021
“I have always found that mercy bears richer fruits than strict justice”
- Abraham Lincoln
Mercy has been considered as an essential element for bringing desirable and socially acceptable changes in an accused. This is the basic principle Indian law system is structured upon. This article deals with concept revolving around mercy that is, pardoning power. Besides providing brief account of meaning and importance of pardoning power, the article addresses and illustrates pardoning power of the President, the hon’ble Supreme Court and of the Judicial Magistrate. The article aptly indicates constitutional and statutory provisions that imply the pardoning power to be exercised by aforesaid authorities. However, since no system and structure are perfect there have been issues pertaining to pardoning power of the President. Therefore, the judicial intervention over this issue along with stances taken in judgments are highlighted in the article.
Meaning and Importance of Pardoning Power
The literal meaning of pardon is excusing an offense without exacting a penalty. Pardon is simply, an act of granting mercy. Pardon has been defined as “a decision taken by the government to absolve the crimes of a convict and free him/her from the prison sentence. All past records are treated as if they never occurred.” Pardoning power refers to power to forgive i.e., absolve from the consequences of a fault or crime.
Why pardon or an act of mercy is important at all? It’s so because as rightly quoted by Lincoln, Indian Constitutional and statutes’ foundational principles rely on the saying that it’s ok if hundreds of guilty are not punished but even a single innocent person mustn’t suffer punishment. Mercy is considered as a god gift and a chance that shall be provided to provide people opportunity to mend their acts.
A criminal justice system is recognized as one of providing justice and abiding by principles of justice, equity and good conscience. But not every system is perfect and absolutely faultless. Sometimes, an innocent person gets trapped and punished i.e., misuse and abusive use of pardoning power by person in power or authority. Misrepresentation of facts and evidence can also result to consequence of an innocent suffering punishment and sentence.A person is justified when the procedures miscarry, giving the state a legal, but not a moral, license to punish. Therefore, without such power of clemency or mercy, the functioning performed by executive and government may render ineffective and deficient. The objective of pardoning power is to keep a door open to correct judicial errors and award relief which the concerned authority thinks unduly harsh.
Pardoning power of the President is dealt with in Articles 72 and 161 of the Indian Constitution. Article 72 empowers the President shall to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence in all cases of punishment or sentence of an offense against any law, punishment or sentence by martial court and cases pertaining to death sentence awarded. The article revolves around some specific terms. Similarly, Article 161 empowers the governor with same power withing the state jurisdiction.
Offense indicates to same definition as provided under the General Clauses Act, 1897. Pardon refers to absolutely absolving punishment and conviction. Commutation means substitution of one form of punishment with another form which comparatively is lighter. Remission pontifies reduction of sentence or punishment without changing its character such as, reducing rigorous sentence of six years to one year. Respite is awarding lesser sentence than the original one due to special facts such as, physical disability of convict. Reprieve implies a stay on the death sentence to provide time to the person to apply for Pardon or Commutation from the President.
The procedure starts by filing mercy petition with the President which then is sent for consideration to the Ministry of Home Affairs and then to concerned state for consultation. Then, the MHA recommends the decision to the President. The stance of presidential pardon power is controversial and hence, judiciary has delivered its opinion on it in certain landmark judgments. In Maru Ram v. Union of India, the constitutional bench of the Apex Court through pronouncing judicial stand on presidential pardoning power held that the power is to be exercised on advice of the Central Government which have binding nature on the President and not his own discretion. The bench laid down guidelines to prevent misuse or abusive use of the power.
In Ranga Villascase, the court answered the question when the petitioner challenged the President’s decision of rejecting mercy petition without providing any reason, the court said that the word ‘mercy’ signifies its own discretion and thus, the President isn’t bound to exhibit the reason. In Epuru Sudakar & Anr. v. Govt. of A.P. & Ors., the hon’ble Supreme Court established a well-settled principle that the judiciary has a limited interfering power in the Presidential pardon issue and the pardon granted can be challenged if it’s mala-fide, has irrelevant considerations or is arbitrary. This was done to phase out possibility of undesirable and unjust use of the power.
Of Supreme Court
Pardoning power of the Apex Court is exercised through curative petition. A curative petition is filed when the court has refused to entertain review petition i.e., petition filed to review the decision of the bench and mercy petition. Curative petition is considered as last constitutional resort available for redressal of grievances once review petition is dismissed from hearing. Filing review petition is a statutory right as per of Article 137 of the Constitution which propounds that subject to law or rules under Article 145, the Supreme Court has the power to review verdict delivered by it.
The concept of curative petition originated in Rupa Ashok Hurra v. Ashok Hurra & Anr.to prevent miscarriage of justice and abusive use of power. In case, the Constitution bench unanimously affirmed for emergence of the concept and it was done while interpreting Article 137 and supporting review petition. The court held that the curative petition can be admitted if petitioner succeeds in reflecting violation of principle of natural justice or unjust bias behavior of judges or court’s ignorance towards some facts which were presented before the court but it didn’t consider it.
In normal circumstances, the curative petition is decided by judges in-chamber. Only in rare and exceptional circumstances, open hearing is permitted. A curative petition is first presented before three senior-most judges of the Court and judges who pronounced decision (if available). When majority of the judges agree, it’s listed before same bench. During the process of considering curative petition, the Court can ask a senior counsel to assist it as Amicus Curiae. If the petition is found to lack merit, court can reject the petition and may impose exemplary costs.
Of Judicial Magistrate
S. 306 and 307 of Criminal Procedure Code are about tender of pardon to an accomplice. The purpose of these sections is to obtain evidences from person who directly or obliquely was involved in committal of offence. An accomplice as defined in S. 133 of the Indian Evidence Act, 1872 is a competent witness against an accused. Respected court in R.K. Dalmia v. Delhi Administration defined accomplice as a person who participates in the actual crime committed for which accused is charged. As per S. 307, Judicial Magistrate first class or chief judicial magistrate or metropolitan magistrate or session court or a special judge are empowered to tender a pardon for the offences mentioned in the S. 306 of CrPC.
These offences are, any offence which is triable by court of special judge under the Criminal Amendment Act, 1952 or a session court and offence punishable with imprisonment up to seven years or more. However, there’s a condition put for issuance of tender i.e., the accomplice has to provide every information he’s aware of and also, information related to abettor or the actual person who is accused of committing crime. The competent authority is required to register the reason of the accomplice to do so, whether he’s accepting the tender or not and to furnish a copy of tender of pardon to accomplice free of cost.
Until, the accomplice isn’t presented in the Court, Magistrate doesn’t take cognizance of offence and accomplice accepts tender, he/she remains in custody. Tender of pardon can be issued at any juncture before the pronouncement of verdict or judgment. The difference in these sections as recognized in Narayan Chetanram Chaudhary v. State of Maharashtra, S. 306 can be invoked at pre-committal stage whereas S. 307 can be invoked at the post-committal stage. In case, conditions of trial of such accomplice aren’t fulfilled, S. 308 of the CrPC dictates trial to be followed then.
 Merriam-Webster Dictionary.  Blacks Law Dictionary.  Vishal, Power of Pardon, http://www.legalservicesindia.com/article/1572/Power-of-pardon.html#:~:text=2%20Sec.,President%20can%20pardon%20to%20anyone..  Sajjan Singh Chouhan, Understanding the Presidential Power to Pardon in India, (March 22, 2019), https://blog.ipleaders.in/understanding-presidential-power-pardon-indian/#_ftn2.  Chad Flanders, ‘Pardons and the theory of the “second-best” vol. 65, Florida Law Review, (2013) p. 1566.  Commutation of Death Sentence, https://www.drishtiias.com/daily-updates/daily-news-analysis/commutation-of-death-sentence.  (1981) 1 SCC 107.  Kuljit Singh Alias Ranga vs Lt. Governor of Delhi & Ors, 1982 AIR 774.  W.P. (crl.) 284-285 of 2005.  W.P. (Civil) 509 of 1997.  Richa Goel, Tendering Pardon to an Accomplice, (June 9, 2019), https://blog.ipleaders.in/tendering-pardon-accomplice/#:~:text=According%20to%20Section%20306%20and,to%20act%20as%20a%20witness.&text=Trial%20must%20be%20initiated.,Guilty%20shall%20not%20be%20proved.  1962 AIR 1821.  AIR 1963 SC 599.