The word pardon refers to the act of showing mercy or forgiving an individual for the legal consequences of an offense or crime. It remits fines and can commute sentences. The power of pardons plays a very significant role in giving justice and good governance. It’s granted in the hands of a person in a position of authority like a president, governor, or monarch. An act of granting pardon offers an accused a second chance to improve himself and back to the society where he belongs.
In India, it’s granted in the hands of the president and governor under articles 72 and 161 of the Indian Constitution. It’s a very controversial topic this day because of the case of Bilkis Bano. Pardons follow the principles of mercy and compassion within the legal framework. The power can be used at any time but most of the time it’s often seen in practice during significant national occasions like Independence Day and Republic Day.
Historical Background
The concept of pardoning has evolved from very ancient times. The root of this power can be traced back to ancient civilizations such as Babylon, Persia, and Rome in these societies their ruler exercised absolute authority and the act of granting clemency which was seen as a divine right. In Babylon, the Code of Hammurabi allowed the king to pardon crimes reflecting the belief that the king also followed the way of justice.
After that Philosophers like C Beccaria argued for a more humane way of punishment influencing the path pardons were viewed and granted. In the modern legal system, the power of pardoning is enshrined in various legal systems worldwide each having its limitations and unique procedures in the US only the president had the power to pardon someone, in India it is enshrined in the hands of the governor, and president; and in the UK, the monarch had that power.
Legal Framework
The legal framework governing the power of pardoning changes in every country. Every country has its laws, provisions, and regulations for managing this power.
In India, it’s enshrined under Articles 72 and 161 of the Indian Constitution, which allows the president and governor to use this power while considering the procedure and impartiality. These provisions allow for the pardon, remission, respite, or reprieve of punishment, as well as the decreasement of sentence under specific circumstances. Also, it’s defined under some specific act, like the Provision Act of 1894 and in the CrPC section 432, which empower the “appropriate government” to remit or suspend the sentence of a prisoner. Also, there are some specific criteria, like in Section 433A of CrPC, it’s said that no prisoner should be released before 14 years of undergoing a sentence in case of an offense punishable by death and for those whose death sentence was reduced to life imprisonment.
Case Laws
Some case laws that define the scopes and limitations of pardoning power:
Maru Ram v. Union of India (1980)
In this case, the Supreme Court clarified the scope of the pardoning power of the president. The court clarifies that this power can only be exercised on the advice of the government, and it can be a subject of judicial review if it’s exercised in bad faith.
Kehar Singh v. Union of India (1989)
In this case, the Supreme Court held that the president’s power of granting a pardon is not an act of grace and cannot be claimed as a matter of right, and also the court ruled that this power is subject to judicial review but on limited grounds, such as if the decision was taken with mala fide intention, arbitrarily, or discriminately.
Ethics and Morality
The exercise of the power of pardoning brings with it significant consideration of ethics and morals. The consideration revolves around mercy, fairness, justice, and the potential for misuse.
Justice and Fairness
Correction of judicial proceedings: Courts are not infallible, and there are some instances where individuals are wrongfully convicted or receive disproportionately harsh sentences. With the help of this power, we can correct that judicial error.
Mercy
With the help of this power, we prove that the individual is capable of change and rehabilitation, and it also provides a second chance to improve the individual.
Chances of Misuse
One of the most significant concerns around this power is misuse; if it’s not guided by clear principles and consideration, it can lead to inconsistency and undermine the rule of law.
Responsibility
“With great power comes great responsibility.”
Those who had this power of pardoning should use this power with a sense of responsibility because their decision places a significant burden on society and the justice system.
Comparative Analysis
United States
In the US, the power of pardoning is vested in the hands of the president, and it can be used for federal crimes such as offenses against the state, martial cases, etc. They have a separate department for investigating and reviewing applications for pardons.
United Kingdom
In the UK, it’s called as “royal prerogative of mercy”
The power of pardoning is vested in the hands of the monarch, but it is exercised after advice from the government. They decided after recommendations from the lord chancellor, the secretary of state, etc.
India
In India, the power of pardoning is in the hands of the president and governor, who grant pardons, remissions, and commutations for sentences. The power is exercised after the advice of the minister. Also, the petition was sent to the Ministry of Home Affairs for consideration.
Things we should learn from other states are:
- Establish an independent body that deals with the application of the same review to the Office of the Pardon Attorney in the USA.
- Increase public transparency.
Public Perception
The public’s view on the pardoning power is multifaceted and depends on various factors, like the transparency of the process and the crime the person committed. When granting pardons is transparent, it builds public trust. For example, in the case of K.M. Nanavati, who was accused of murdering his wife’s lover and got a pardon from the governor of Maharashtra, the public viewed the pardon very positively, seeing it as an act of justice and mercy.
On the other hand, in the case of Bilkis Bano, when in 2022, the High Court of Gujarat granted remission to 11 convicts who are accused of rape under this case. The decision gets widespread criticism from the public. People were saying that the decision to grant remission was unjust, especially while seeing the nature of the crime.
Conclusion
The pardoning power plays a crucial role in our judicial system it works on the principle of mercy and correction of wrong. It evolved from the code of Hammurabi to our Indian constitution. It’s vested in the hands of the president and governor and they were properly using this power following their ethics and Morality.
And don’t do injustice to someone or discriminate against someone. Also, some improvement is needed, like the establishment of a separate office to manage and review the application of perdurance. It always strives to maintain public, trust and integrity in our legal system. By carefully managing justice, mercy, fairness, and public trust, the power of pardoning upholds principal of a humane and just society.
Author: Sarthak Yadav, a law student at Uttar Pradesh State Institute of Forensic Science.
