Presidential Pardon – Can it be Subjected to Juduicial Scrutiny

Posted by Law Article on July 15th, 2009 at 12:21pm

 

Meaning of Pardon

In narrow view pardon means to excuse somebody for doing something impolite, or to excuse something impolite, but in broader terms it means, to pronounce the official release of somebody who has committed a crime or other wrongdoing from punishment, or the official forgiving of a crime or wrongdoing.

Pardon as a word is derived from old French perdun and pardun, and modern French pardonner which signify in Brittany the feast of the patron saint of a church or chapel, at which an indulgence is granted. Hence the term pardon finds its origin in the meaning as it was used in Brittany.

A pardon is the forgiveness of crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent authority like church. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. Today, pardon is granted in many countries when individuals have demonstrated that they have fulfilled their debts to society, or otherwise deserve, in the opinion of the official, of a pardon. Pardon is some times offered to persons who, it is claimed, have been wrongfully convicted.

Justice Marshal of the American Supreme Court put pardon in Wilson’s case in 1833 as ‘an act of grace, proceeding from the power entrusted with the execution of the laws’.

In 1927 this approach was abandoned and Justice Oliver Holmes, one of the distinguished judges of 20th century said that ‘a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.’

Need for the Power of Pardon

Writers on law and political science often put the fundamental question, is there need for prerogative mercy? The law commission of India, in its report on capital punishment, examined this question at great length. In its report it discuses several aspects of prerogative. It was argued that in India where death sentence is not mandatory and court is free to consider the circumstances relevant to the question of sentence, the prerogative of mercy is not needed. The commission noted that there are many matters which may not have been considered by the courts. The hands of the court are tied down by the evidence placed before it. The truth of the matter is that law is made for man. Justice is much more than mere codes and precedents. There are occasions when justice and humanity demands that mercy be shown in the matter of sentence.In the American case of Grossman, the Supreme Court pointed out that executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.

Pardon in Indian context

The Central Executive i.e. the President of India exercises very broad and varied functions. It exercises not only executive functions but also, in a limited way, judicial functions as well. The power of pardon is one such very wide power granted to him.

The Article 72 of the Indian Constitution empowers the President to grant pardon, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases –

(a) where the punishment or sentence is by a court martial:

(b) where the punishment or sentence is for an offence against a law relating to a matter to which the union’s executive power extends; and

(c) of a death sentence.

This however, does not affect the power conferred by law on any officer of the Union armed forces to suspend, remit or commute a sentence passed by a court martial, as well s the power exercisable by the State Executive to suspend, remit or commute a death sentence. The president acts in this matter on the advice of Home Minister.

The Constitution of India is silent as to the manner in which the Presidential pardon is to be exercised. But it seems a reasonable view to take that this power like other powers of the president, is exercised on the advice of the Cabinet.

The exercise of power has not been free from controversy. A number of question have cropped up before the courts as for example-

1. Does the president exercise any personal discretion in the matter or does he acts merely as a constitutional head?

2. Should he give personal hearing to the convict or his lawyer before disposing of the matter?

3. Is the exercise of this power subjected to any judicial review?

The answer to the 1st question is very much known that power of pardon is exercised on the advice of the cabinet. This view was interpreted in Maru Ram’s case. Similarly in Kehar Singh’s case Supreme Court denied that there is any right in the condemned person to insist on an oral hearing before the President, through this, answer to the 2nd query is also clear.

Now remains the most important and controversial question, can pardon be subjected to judicial scrutiny? The court considered it as early as in G. Krishna Gouda v. State of A.P. In this case the President refused to commute the death sentence. They moved a writ petition in High Court and the matter ultimately came before the Supreme Court. The court pointed out that ‘all power, however, majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed care and honesty for the public weal’. The court never shows in this case any glaring ground to consider the refusal of commutation as degraded by abuse of power.

Pardon in some European countries

In Canada the pardons are considered by the National Parole Board under the Criminal Code, Criminal Records Act and several other laws. Here once offender is pardoned, a criminal records search for that individual reveals ‘no record’.

The pardoning power in France is vested in President of France. If any one granted with the same the decree of pardon is signed by the President, Prime Minister, Minister of Justice. It can not be published in official journals. But it does not erase the condemnation from the record.

Pardon in Germany is divided between the federal and the state level. The grant of federal pardon lies with the President of Germany, which can be transferred to Chancellor or the Minister of justice. Political crimes like treason or terrorism are tried on behalf of the federal government by the highest state courts. All other pardons are in the jurisdiction of the states. In states it is granted by the respective cabinets, but in most states the state constitution vest the authority in the state prime minister.In UK the power to grant pardon is a royal prerogative of the monarch.

Pardon in United States

The pardon power of federal crimes is granted to the President by the United States Constitution, Article II, section 2, which states that the President shall have power to grant reprieve and pardons for the offences against the United States, except in cases of impeachment. Typically, applications for pardons are referred for review and non-binding recommendation by the office of the Pardon Attorney, an official of the Department of Justice.

Use and abuse of pardoning power

The power of pardon is controversial from the out set; many Anti-Federalist remembered examples of royal abuses of the pardon power in Europe, and warned that the same would happen in the new republic.

Many pardons have been controversial; one such pardon was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate scandal. Majority of Americans showed disapproval and he was narrowly defeated in Presidential campaign, two years later. Other cases of such abuse include Andrew Johnson’s sweeping pardons of thousands of former Confederate officials and military personnel after the American civil war, Jimmy Carter’s grant of amnesty to Vietnam-era draft evaders, George H.W. Bush’s pardons of 75 people, including six Reagan administration officials accused in connection with the Iran-contra affair. George Bush’s commutation of I. Lewis ‘Scooter’ Libby’s prison term.

Former President Bill Clinton granted pardon to 140 convicts in different cases on January 20, 2001, his last day in the White House. Clinton himself besieged by controversy, write an article in the New York Times in which he wrote “the vast majority of my Jan 20 pardons went to people who are not well known. Many of these were 1st time nonviolent offenders with no previous criminal records. In some cases I granted pardons because I felt the individuals had been unfairly treated and punished pursuant to the Independent Counsel statute.” More than half of Mr. Clinton’s article was devoted, however, to his pardon of Marc Rich. A billionaire Rich fled the US to escape a massive tax invasion to Switzerland in 1983. Mr. Clinton wrote that many present and former high ranking officials in Israel, as well as leaders of the Jewish community in America and Europe, urged the pardon of Rich because of his charitable contribution and services to Israeli causes, the peace process in the Middle East through education and health programs in Gaza and the West Bank. It was suggested that Rich’s wife, Denis made political contribution which comprise more than $1 million to the Democratic Party; $450000 to the Clinton library etc., whom should America believe? The oral testimony of most charismatic and successful President of America after J.F. Kennedy, or the palpable testimony of donations.This problem may be peculiarly American today but could well be Indian tomorrow, for the pardoning power under the Indian Constitution springs from the same jurisprudential foundations. And the abuse of discretionary power, even at the highest levels of the state, knows no limitation of religion, nationality or culture.

Under the Indian context though the issue of pardon has not gained that much of impetus but has been a matter of scrutiny off late. However, it is to be noted that the issue of presidential pardon had been highlighted under certain cases in the past. One of the landmark cases that brought the issue of Presidential Pardon in the lime light was Maru Ram v/s Union Of India In this case the court expressly stated that the power of pardon under article 72 cannot run riot and must keep sensibly to a steady course and that public power, “shall never be exercisable arbitrarily or malafide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power”. A similar opinion was presented by the court in Kehar Singh v/s Union Of India. In this case the court reiterated, “it appears to us clear that the question as to the area of president’s power under article 72, falls squarely within the judicial domain and can be examined by the court by way of judicial review”. While these two cases did not call for judicial intervention, relying on the law laid down in them, the Supreme Court invalidated the remission of sentence by the governor of Uttar Pradesh in Swaran Singh v/s State of UP, because some material facts were not brought to the knowledge of the governor. Under article 161, rejecting the argument that governor’s action under article 161 is beyond judicial scrutiny, the court held: “if such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the constitutionalism, the by product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it”.

On a concluding note, a recent case law brought forward the sorry state of affairs in the country regarding the usage of power of Pardon. Famously known as the ‘remission case’ Supreme Court’s landmark verdict somehow changed the scenario by instilling hopes of many people in the judiciary. In Gouru Venkata Reddy v/s State of AP the dramatic remittal of congress activist Gouru Venkata Reddy, who was undergoing a 10 year imprisonment sentence in connection with the killing of the two persons, raised the eyebrows of many apex authorities. Thus after an appeal to the Supreme Court by the sons of the deceased a bench consisting of Justice Arijit Pasayat and Justice S.H. Kapadia overturned the pardon granted by the then governor of Andhra Pradesh Sushil Kumar Shinde, and warned that the exercise of the clemency power would be tested by the court against the maintenance of Rule of Law. Our Hon’ble Supreme Court gave the ruling that the power to grant clemency is subject to judicial review. Now it can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of law is the basis for evaluation of all decisions.

Granting pardon is not an act of grace; rather it is something more than that. It is very much a part of the constitutional design. Pardon should be granted on the basis of public welfare and rule of law, not because of any religious, political or cultural affinity. The ultimate purpose of granting a pardon should be to create a better society to live in. It should be justified on the lines that public welfare will be better served by inflicting less than what the courts have ruled. However, at the same time it should be kept in mind that the power of pardon should fall under the concept of ‘limited freedom’ where it should also be subjected to judicial review. The power that is vested in the President or the Governor is not for the benefit of the convict rather it should be exercised for the benefit of the society at large.

 

 

Tags: Constitution, Judgement, Pardon, President