Presidential Pardon & Judicial Review
Question: What is the Constitutional Position of Power of pardon given to President of India and Governor of Indian States? Are these Powers absolute? Do these powers come under Judicial Review?
The Constitution of India vests sovereign power in the President and governors. The governance in the Centre and states are carried out in the name of President and Governor respectively. A President is empowered with the power to pardon under Article 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 offence. The meaning of these terms is as follows:
Pardon: Complete pardon
Reprieve: Temporary suspension of sentence
Respite: awarding less sentence
Remission: Reducing amount of sentence
Commutation: Changing one punishment to another.
The Article 72 reads:
(1) The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence-
(a) in all cases where the punishment or sentence is by a court martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub- clause (a) of clause (1) shall after the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
Similarly, as per article 161: Governor of a State has 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. Please note that President can grant pardon to a person awarded death sentence. But Governor of State does not enjoy this power.
The question is that whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers. The pardoning power of President is NOT absolute. It is governed by the advice of the Council of Ministers. This has not been discussed by the Constitution but is the practical truth. Further, the Constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction. But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness. The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.