Article 72 of the Indian Constitution gives the President the power to grant pardons. The President has the power to grant Pardon in three specific cases which are as follows:
- In all cases were the punishment or sentence is against any law relating to a matter to which the executive power of the Union extends.
- In all cases where the sentence is a Death Sentence.
- In all cases where the sentence is given by a Military Court (Court Martial).
The pardoning power of the President is not a discretionary power of the President. This is because after a sentence is passed by the Supreme Court, the application for a Mercy petition is presented before the Ministry of Home Affairs after the Home Ministry examines the Mercy petition it is sent forward to the President.
The Pardoning power which resides with the President can be classified into 5 different types. These various types of pardoning are as follows:
- Pardon–This is when the punishment is completely removed and the convict is set free.
- Commutation – It is a substitution of the current punishment to another. The nature of the punishment changes. For example, converting a Death Sentence into Life Imprisonment.
- Remission–This is when the nature of the punishment does not change but the punishment is reduced. For example, changing 10-year imprisonment to 5-year Imprisonment.
- Respite – This means reducing the quantum or degree of the punishment of a criminal because of special circumstances like pregnancy or a mental ailment.
- Reprieve – This acts as a delay to the sentence, when the President is silent upon the mercy petition, usually in a death sentence.
The pardoning power lies with the Executive or the President, just to keep the doors open for correcting any judicial errors in the operation of law. Another aspect that it covers is to grant relief from a sentence which the President regards as unduly harsh.
Principles laid down by the Supreme Court for a Mercy petition:
The power to grant mercy by the President has always been debatable. There are various cases where the Supreme Court has passed orders in reference to the mercy petition. Some of the important principles laid down are as follows:
- No oral hearing shall be taken up for a Mercy petition.
- The Mercy petition shall be approved on the advice of the Union Cabinet.
- The President shall not be bound to give the reasoning for its decision on the Mercy petition.
- A person cannot apply for a second mercy petition once the petition is rejected.
- The decision of the Mercy petition can come under the scope of Judicial Review.
Concept of Judicial Review
The concept of Judicial Review was first coined by the Supreme Court of the United States in a landmark judgment of Madison v. Marbury, 1803.
Judicial Review isthe power of the Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction. The power of judicial reviewwas being exercised by the courts in India, prior to the enactment of the Constitution, by the British who introduced the Federal System in India by enacting the Government of India Act 1935.
Judicial Review is nowhere defined in the Indian Constitution, but Article 13 of the Constitution indirectly talks about Judicial Review.
Article 13(2) runs as follows: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.[i]
Its means that the Executive or the Legislature shall not make any law (Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law) which takes away the fundamental rights of the people, and if any such law is made, then the judiciary has the power to struck out such law and make it void.
Rejection of a Mercy petition and its Judicial Review
After a person has exhausted all the reliefs in the court of law and is convicted for a Death Sentence, the last ray of hope that is available to him is to file a mercy petition to the President of India. Article 72 of the Indian Constitution gives the President of India the power to grant pardons, etc, and to suspend, remit or commute sentences in certain cases.
The power to grant pardon is used by the President on the advice of the Home Ministry. The constitution provides such a power to the Executive so that it can keep a check on the judiciary and see that no innocent person is given a death penalty or any other unduly harsh punishment.
The President has the power to grant or even reject the mercy petition while keeping a check on the judgments of the Courts.Now the main question that comes up is that if the President rejects a mercy petition, will it come within the purview of Judicial Review? Will the petitioner have the right to approach the court again?
Initially, there was no scope of judicial review on the rejection of a mercy petition by the President. As the judicial review was only used to keep a check on the laws made by the government.
In the case of Maru Ram v. Union of India[1], it was observed that the power conferred by Article 72 is highly prerogative. The constitutional Bench pointed out that when it comes to adjudicating whether the power vested in a very high authority is subject to judicial review, it comes with a presumption that the authority would have acted properly and carefully after an objective consideration of all the aspects of the matter and further, the higher the power, the more cautious would be its exercise.[ii]It was also held that if such a decision by the President of India is based on wholly irrelevant grounds or an irrational, discriminatory or mala fide intention, only thenit can be a ground for judicial review.After this case, the President’s decision to reject a mercy petition came under the purview of Judicial Review, but only with a limited scope.
The limited scope for judicial review of the rejection of a mercy petition by the President was laid down in Satpal v. State of Haryana[2], which was further referred to in Bikas Chatterjee v. Union of India and Another[3].
The various grounds laid down for Judicial Review of rejection of a mercy petition by the President/Governor were as follows:
- The Governor exercising the power under Article 161 himself without being advised by the Government; or
- The Governor transgressing his jurisdiction; or
- The Governor passing the order without application of mind; or
- The Governor’s decision is based on some extraneous consideration; or
- The decision is based on mala fide.
It is on these grounds that the Court may exercise its power of judicial review concerning an order of the Governor under Article 161, or an order of the President under Article 72 of the Constitution, as the case may be.[iii]
Earlier this year on 29th January 2020, Mukesh Kumar, a death row convict in the Nirbhaya Gang Rape case had filed a writ petition under Article 32 of the Constitution of Indiachallenging the rejection of his mercy petition by the President of India.
The petitioner had challenged the rejection of his mercy petition by the President on the following grounds:
- That the relevant material was not placed before the President and the relevant materials were kept out of consideration while considering the mercy petition;
- There was an absence of recommendation of the Superintendent ofTihar Jail in nominal roll.
- The petitioner was kept in solitary confinement for more than one and a half years due to which the petitioner had developed severe psychiatric ailments.
- There was no application of mind by the President while rejecting the mercy petition.
The court had dismissed all the contentions made by the petitioner.
- As to the averment of relevant materials not being placed before the President, the court observed that it is not necessary that each material relied upon by the petitioner (convicted person) must have been placed before the Presidentfor consideration.
- As to the averment of the absence of recommendation of the Superintendent, Tihar Jail in nominal roll, the court observed that it is not incumbent upon the jail Superintendent to provide his recommendations because of the words “recommendations of the jail Superintendent if any”being stated in the column. The words “if any” indicate that the Superintendent may or may not provide the same.
- As to the averment that the petitioner was kept in solitary confinement, the court observed thatDirector General, Prisons, in his affidavit, has denied the averment that the petitioner was kept in solitary confinement. It was contended that the ward where the petitioner was kept in had many single rooms and barracks. The rooms had iron bars for security reasons and ventilation soit could not be equated with solitary confinement.
- The learned Solicitor General had submitted that quick consideration and subsequent rejection of the mercy petitioncannot be a ground for judicial review of the order of the President under Article 72 of the Constitution. Furthermore,it does not in any way suggest that there it was pre-determined or there was non-application of mind.
Keeping all of these things in mind, the Hon’ble Supreme Court of India consisting a Bench of R. Banumathi, Ashok Bhushan and A.S. Bopanna had ultimately dismissed the Petition by the Petitioner, stating that no grounds for the exercise of judicial review of the order of the President of India rejecting the petitioner’s mercy petition were found to be true.
Conclusion
As Article 13 of the Indian Constitution suggests, judicial review should be confined to laws made by the executive and the legislature only. The article is silent upon the judicial review for rejection of a mercy petition, and it is also nowhere mentioned in the Constitution of India.
The concept of judicial review for rejection of mercy petitions came after various landmark judgments which are stated above. Judicial review in such cases has limited scope as the decision over a mercy petition is ultimately made by the President of India who is the ceremonial head of state of India.
It should be taken into consideration that when the President rejects a Mercy petition, it is upholding the Judgment of the Supreme Court of India, which is the highest court of appeal. If a judicial review is taken up for rejection of a mercy petition, it somehow raises a question on both the Supreme Court first and on the President too, after which the matter again goes back to the Supreme Court only. This becomes gibberish, as once the Hon’ble Supreme Court has given its judgment, and the mercy petition is also rejected by the President, then why should the Judiciary come into play again.
Judicial Review as provided under Article 13 is very important to keep a check on the laws made by the Executive and Legislature so that the laws do not violate the fundamental rights of the people. But this Judicial Review concerning the rejection of mercy petition must be used in the least capacity as possible and its scope must always be limited to only mala fide decisions, extraneous consideration, and when the President acts beyond its powers or without the advice of the government.
By-
Utkarsh Kumar
Amity Law School, Noida
[1]1981 SCR (1)1196.
[2](2000) 5 SCC 170.
[3](2004) 7 SCC 634.
[i]Article 13(2) – The Constitution of India
[ii]Maru Ram v. Union of India (1981) 1 SCC 107
[iii]Bikas Chatterjee v. Union of India &Ors. (2004) 7 SCC 634
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