• Dr.V

PARDONING POWER OF PRESIDENT AND GOVERNOR : ART.72 & 161


Art.72 and 161 : COI

1.What is pardoning power?

  • Pardoning = You are free to go.

  • Commutation = death=> rigorous imprisonment . Qualitative reduction with changing character of punishment.

  • Remission = 1year => 6 months Quantitative reduction with same character.

  • Respite = Special fact and lesser punishment. Eg: pregnant lady

  • Reprieve = stay of execution of the sentence.

  • (US prez and UK crown have similar powers)

2. Why is this 'judicial power' given to executive?

coz.

  • Judges, who are also humans, are prone to judicial errors. To perfect the imperfections.

  • Fallibility of human judgement can happen even in the most trained mind. (Pathak.CJ. In Kehar Singh V. UOI)

3. When can prez exercise? Before or after conviction. Who can file? Any convict including foreign nationals- can file a mercy plea from prison through officials, his lawyer or family- to Prez. office or MHA or state Governor.

TRIVIA : convict can use emails too!

4. Nature of the power ?

  • Very extensive. Cannot be exercised without advice of the Cabinet.

  • Unlike U.K where pardoning is an act of grace, We follow the U.S.A view that - it is a part of constitutional scheme. (Holmes.J - Biddle V. Vuco Perovich ; kehar singh V.UOI)

  • Discretionary. Yet exercisable on public grounds alone.

"power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.” S.H. Kapadia, J. Epuru Sudhakar and another v. Govt. of A.P.

5. 4-Fold principles for President - Kehar Singh case:

  • Convict can't ask for oral hearing b4 prez

  • Prez exercises power on the adv of C.Govt

  • Can go into merits + arrive at diff view

  • No Judicial Review of his decision (except for grounds mentioned in Maru ram's case )

  1. JUDICIAL REVIEW: (By-heart it!)

WHEN ? Maru Ram v. Union of India + Swaran Singh v. State of U.P. = that the power of judicial review of the order passed by the President or the Governor under Article 72 or Article 161 is available on limited grounds.

WHICH ARE:

  1. Maru Ram v Union of India - 1981: "The court, if it finds frequent misuse of this power may have to investigate the discrimination. The exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments..... irrelevant reasons as religion, caste, colour or political loyalty"

Satpal v. State of Haryana :

1.EXERCISE OF POWER WITHOUT THE ADVICE OF CABINET 2.TRANSGRESSING HIS JURISDICTION 3. WITHOUT APPLICATION OF MIND 4. EXTRANEOUS CONSIDERATIONS 5. MALAFIDES.

Bikas Chatterjee v. Union of India :

A case of no consideration or consideration based on - wholly irrelevant grounds or an irrational, discriminatory or mala fide decision - of the President which can provide ground for judicial review.

Epuru Sudhakar and another v. Govt. of A.P. : an arbitrary or malafide manner or in absolute disregard of finer canons of constitutionalism. 7. WORKING OF PARDONING POWER:

Presidents, with the exceptions of Narayanan and Pratibha Patil, have dealt with mercy petitions largely without mercy. According to information released by the government under the RTI Act, of the 77 mercy pleas decided by Presidents between 1991 and 2010, 69 were rejected. Only 8 — about 10% — of those who sought mercy were spared the gallows. R Venkataraman (1987-1992) rejected 44 mercy pleas, the most by any President.

  1. CURRENT AFFAIRS (CA) : -Can the supreme court exercise the pardoning power under Art. 32 read with Art.142 ?

Tara Singh V. Union of India 2016.

"The argument that when a pardon or remission can be given under Article 72 (by President) or 161 (by Governor) of the Constitution by the constitutional authority, this court can exercise the similar power under Article 32 of the Constitution, is absolutely based on an erroneous premise...............the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious and we unhesitatingly repel the same" bench of justices Dipak Misra and Shiva Kirti Singh .

END OF PART 1.

OTHER ISSUES: 1. pardoning power & capital punishment ; 2. How criminal statutes control the exercise of this constitutional powers ; 3.Governor power V. Prez power. 4. Other CA.

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