Maru Ram v.

Union of India

2010

Constitutional Law Project

A case on the Pardoning Power of the President

Divya Sinha
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Maru Ram v. Union of India

CASE
The need of the pardoning is always felt because no human being is infallible and there is always possibility of mistake, judges cannot be at exception and they can also commit error while giving punishment or sentence to the accused. To cure such a situation this power has been granted to an independent organ of the government free from any sort of restraints. Fiat justitia pereat mundus-which means let justice be done even if the world shall perish, would have remained a maxim only in absence of pardoning power being vested in the executive. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy1. So, the relevant provision for the grant of power regarding the grant of pardon, remissions suspension of sentence etc. by the president of India is under Article 72 of the Constitution of India. Article 72 Power of the president to grant pardons, etc. and to suspend and remit or commute sentences in certain cases- (1) The president shall have 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(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 the matter to which the executive power of the Union extends; (c) In all cases where the sentence is a sentence of death. The significance and need for clemency has been a source of debate from decades. Montesquieu believed in significance of clemency in the monarchical system. Beccaria advocated total abolition of this institution and keeping this in view this provision was dropped for few years in France during the revolution of 1789 while the English scholars Feilding, Eden and Colquhoun concentrated their attacks on the abuses evident in the exercising of the pardoning power. Immanuel Kant and Filangeiri were against the very existence of such a provision. The power of pardon could be thought of as an archaic survivor of a bygone era where there existed an omnipotent ruler who was vested with powers to bestow his benevolence once in a while totally based on his whims and fancies. Even today the reflections of the past can be seen in the provisions of our constitution. The constitution vests in the president and the governors of various states with the power to grant reprieves and pardons through its articles 72 and 161 respectively in addition to the commutation of sentences which may be also appropriated by the government under the provisions of CrPC and IPC. The presidential power acts as a safety valve in exceptional

http://www.answeringlaw.com/php/displayContent.php?linkId=1068 accessed on 1st November 2010

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Electronic copy available at: http://ssrn.com/abstract=2121161

Maru Ram v. Union of India

cases where the legal system fails to deliver a morally or politically unacceptable result and hence secures public welfare2. Indian constitution provides two safety valves in Article 72 and Article 161. In the case Maru Ram v. Union of India3 there were two issues that had emerged 1) Is the president bound to act on the aid and advice of the Council of Ministers while exercising his right to grant Pardon? The court emphasized that no constitutional power is to be exercised arbitrarily. In Article 74(1) of our 1950 constitution had provided that there shall be a Council of Ministers with the Prime Minister to aid and advice the president in the exercise of his functions. But 25 years later, during the Internal Emergency of June 1975, the language of the Article 74(1) was altered and were made even more absolute and finally in the 42nd amendment to the constitution thought the 42nd amendment act, 1976, provided that there shall be a council of ministers at the had to aid and advice the president who shall, in the exercise of his functions, act in accordance with such advice4. Justice Krishna Iyer has clearly stated that. Power vested on such a pedestal has to be exercised justly. All public power including constitutional power, shall never be exercisable arbitrarily or in a mala fide way or through ordinary guidelines for fair and equal execution and guarantors of the valid play of power on this aspect the court further states that Article 14- is an expression of the egalitarian spirit of the constitution and a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power of pardon, grant remission or commutation, being the greatest moment for the liberty of citizen cannot be a law unto itself but must be informed by the finer canons of constitutionalism5. 2) Is the exercise of power by the president, under article 72, judicially reviewable? Considerations for the exercise of power under Article 72 maybe myriad and their occasion protean, and the best be left to the government, yet, if in any case, the power of pardon, commute or remit is exercised on irrational, irrelevant, discriminatory or mala fide considerations, the court has examined has examined these very principle in the very landmark case of Associated Provincial Picture Houses v Wednesbury Corporation6 in this case the court had set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review. The times the statue may require the authority to act reasonably. The courts have also stated that the authority should consider the question fairly and reasonably before taking action. The term unreasonable means more than one thing. It may
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http://www.legalindia.in/power-of-pardon-in-india accessed on 1st November 2010

AIR 1980 SC 2147 Jain M.P. Indian Constitutional Law [Nagpur, Lexis Nexis Butterworths Wadhwa]. 6 th Edition, 2010; p.1818 5 Supra; n 1 (para.62) 6 [1948] 1 KB 223 3|P age

Maru Ram v. Union of India

embody a host grounds mentioned already, as that the authority has acted on irrelevant or extraneous consideration or for an improper purpose, or mala fide, etc. Unreasonableness may also mean that even thought the authority has acted according to law in the sense that it has not acted on irrelevant grounds or exercised power for an improper purpose, yet it has given more weight to some factors than they deserved as compared with other factors. Interference on this ground requires going into the relative importance of different factors and their balancing which amounts to substituting the discretion of the judiciary for that of the executive. Courts do not normally exercise such wide power to interfere in the exercise of the administrative discretion. Unreasonableness may furnish a ground for intervention by the courts when the Constitution of India or the statue so requires. Thus, article 14 of the Indian Constitution guarantees equality before the law but the courts have permitted reasonable classification to be made. Where the law is valid under the article, a discriminatory action would still be violative of the equality clause. There may be grounds such as political vendetta or party favoritism which may make the actual exercise of the constitutional power vulnerable7. The order which is the product of extraneous or mala fide factors will vitiate the exercise and likewise capricious criteria will avoid the exercise. So that is why it was said that the decision taken by the when such a situation arises the matter will be looked into by the court. Here we can observe by a combination of various Supreme Court Judgments and spineless nature of successive increments, the President of India has been converted into a perfect rubber stamp I cannot accept your canon that we are to judge Pope and King unlike other men, with a favorable presumption that they do no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. - Lord Acton8. The provision corresponding to Article 72 in the Government of India Act 1935 and was section 295 which read s follows:(1) where any person has been sentenced to death in a province, the Governor General in his discretion shall have all such powers of suspension, remission of commutation of sentence as were sentenced in the Governor-General in his discretion shall have all such powers of suspension, remission of commutation of sentence as were vested in the governor general in council immediately before the commencement of part III of this act, but save aforesaid no authority outside a province shall have any power to suspend, remit or commute the sentence of any person convicted in the province.

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http://legalperspectives.blogspot.com/2010/05/wednesburys-principles-of.html visited on 31st October 2010. Quoted by Justice Krishna Iyer in Maru Ram v. Union Of India

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Maru Ram v. Union of India

Provided that nothing in the sub-section affects any powers of any officer of His Majestys forces to suspend, remit or commute a sentence passed by a Court Martial (2) Nothing in this act shall derogate from the right of His Majesty, or of the GovernorGeneral, if any such right is delegated to him by his majesty, to grant pardons, reprieves or respites or remissions of punishment9. The above constitutional provisions were debated in the Constituent Assembly on the 29th December 1948 and 17th December 194910. Executive clemency is like the unbridled wind which blows unhindered with least interference of the judiciary and with discretionary powers to the president and the governor. The executive which is mired with its political bias has been granted to make decisions overriding the decisions of the apex-courts of the country. Does this lead to a decision made in public interest, one which is more humane? The answer definitely is in the affirmative. Let the provision for pardons be a ray of hope to those subject to the positivist limitations of interpretation of the law by the judges. Lon Fuller, the creator of inner morality of law clearly indicates that executive is not bound by the shackles of the black letter law and may go beyond it to include the essence of morality in it. The president and the governors of various states have the power to grant pardons, reprieves, commutations and remissions of sentences as long as it is based on certain reasons, the power of judicial review shall only be limited to the cases where the decisions was passed without application of mind or if the order is mala fide or has been passed on some extraneous considerations like political loyalty, religion, caste etc. This safety valve placed in the form of judicial review is a boon in keeping a check on arbitrary decisions of the executive but it also creates a never ending tedious cycle prolonging the process of law11. It is imperative that a person be deprived of his life and liberty by due process of law or by laws which are just, fair and reasonable. Consequently, the presidential power should also be used in accordance with the due process of law. To become so certain changes are recommended. Firstly, it is required that in the spirit of democracy, it is important that transparency be maintained in taking decisions on the mercy petitions. The president and the governors or those who indirectly exercise these powers through advice need to have objective criteria to process the petitions and the rationale behind each decision should be made clear through a speaking order. Secondly, keeping in mind the tenets of Article 14 of our constitution, the provision should be exercised with equanimity towards one and all without distinctions on the basis of gender, age, caste, community, language or geography. In the democracy the ultimate sovereignty lies with the people and through them vests with their representatives. Hence exercise of such power by the political executive by advising head of the state to grant pardon is legitimate. In India the processes have enough checks and
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Epuru Sudhakar and Anr vs. Government of Andhra Pradesh (AIR 2006 SC 3385) Para.4 Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol.10, page 389 11 Aastha Suman, 4th year, WB NUJS, Kolkata through Supra n 6
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Maru Ram v. Union of India

balances but never the less more caution is needed to avoid political considerations and exigencies colouring the exercise of the powers of pardon as evident from the past experiences and cases. A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts. Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the president needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism. Furthermore there should be equity before law and equal opportunity to all. For this the poor and the illiterate should be provided assistance in drafting, and pursuing their mercy petitions. Lastly and most importantly, it should be made a matter of policy that those prisoners who seem to have atoned and reformed should be pardoned and suitably rehabilitated. This shall encourage the criminal offenders to turn their lives around and start afresh. The president should use his wisdom and discretion well in order to take a just decision based on objective criteria to grant pardons. Above all by the time the above recommendations are put into action the judicial review of pardoning power remains inevitable even if in a limited way.

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