Constitutional Law: Pardoning Power of President

Reading time : 10 minutes

Introduction

As per the Merriam Webster dictionary, the word “Pardon” means to excuse or to forgive for a fault. Pardoning or showing mercy or leniency can be seen as an act of grace or humanity, to show belief in morality, but it can also be seen as a Constitutional scheme determining ultimate authority that the public welfare will be assured by inflicting less pain. The Pardoning power of the President is mentioned under Article 72 of the Indian Constitution. The Article grants the President the power to grant absolution, remission show leniency or excuse any punishment in situation where a death sentence has been issued. Apart from the President, the Governor also has the power to grant a Pardon under Article 161 of the Indian Constitution.

Jurisprudence behind Pardon

The jurisprudence behind Pardoning is that it would create a sense of guilt. The underlying philosophy in the “Pardon” is “every civilized country recognizes and has, therefore provided for the Pardoning power to be exercised as an act of grace and humanity in proper cases, without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tampered with mercy.”[1]

The Pardon exercised, acts as an act of mercy and humanity to show existence of morality. It reflects a two-fold purpose – to prevent any judicial errors to happen and to provide relief from a sentence that is considered to be harsh. The power to Pardon helps create sense of belief in the public to be able to depend on the system, the only the legitimate conclusions will be taken out. The main aim of the power is to work for the welfare of the public. The power allows one to be removed from the title of accused to that of an innocent, hoping to create a sense of responsibility and provide protection.

Provisions under Constitution

The Pardoning power of the President was first mentioned in Article 59 of the Draft Constitution. It was later adopted with minor amendments under Article 72 of the Constitution of India, the power to Pardon is mention as:

“72. Power of President to grant Pardons, etc., and to suspend, remit or commute sentences in certain cases

(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 affect 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.[2]

According to the Article, the President has the power to grant Pardon, reprieves or remission of punishment or sentence where the punishment or sentence is by a Court martial, a death sentence, or for an offence relating to the Union.

The term Pardon indicates removal of both, the sentence as well as the conviction absolving the convict. The term Commutation denotes substitution of one form of punishment with another lighter punishment. The term Remission implies a lesser duration to the sentence with same nature. Respite denotes awarding a lesser sentence due to an important fact and Reprieve implies holding out a death sentence for a period of time.

The Governor is also provided with the power to Pardon under Article 161 of the Constitution of India.

According to the Article,

“161. Power of Governor to grant Pardons, etc., and to suspend, remit or commute sentences in certain cases

The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.”[3]

Judicial review of Pardon of power

The question of the executive exercising the power to Pardon has always been in question, but with the landmark judgment of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, it was held that the power underlying under Article 72 and 161 would be subjected to judicial review.

The nature and ambit of the Pardoning power has been questioned through a number of cases. In the Ranga Billa case, the appellant filed a writ petition in the Supreme Court, challenging the President’s discretion to grant Pardon because no reason was given for the rejection of his mercy petition. The Court dismissed the petition observing that the term “Pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned. Before this, in cases like Maru Ram v Union of India and Dhana v State of West Bengal, the Supreme Court stood on its opinion the power to Pardon should not be exercised by the President or the Governor on their own but by the central or the state government or with its involvement.

But in the case of Kehar Singh v Union of India, the Supreme Court held a different opinion. It focused on the fact that the provision under the Articles has a wide amplitude, contemplating a number of categories and kinds of cases with varying situations. The grant by the President is an act of mercy and grace and not a matter of right. The grant is used for the public welfare varying from case to case. It was said that since the power exercised by the President is exclusively of administrative nature, is not justiciable.

In Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, the Court set aside the decision of the then Governor, remitting the sentence and warned, that the exercise of the power would be tested by the Court against the maintenance of Rule of Law. The Rule of Law is the basis of all Courts’ decisions. It is to remind that the power to Pardon is a matter of discretion with certain standards, it is not a matter of privilege but of duty. The Supreme Court, to prevent the undue exercise of this power against religion, caste, political loyalty or any other discrimination, settled that the power to Pardon of the President and the Governor under Article 72 and 161 of the Constitution would be subjected to judicial review.

Understanding the Exercise of Pardoning Power 

Article 72 of the Indian Constitution mentions the power of the President to grant Pardons reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.

Although the Article mentions the power to the President clearly, the President cannot independently exercise the power. In cases like Maru Ram vs Union of India in 1980, and Dhana vs State of West Bengal in 1994, the Supreme Court stated that the President or even the Governor cannot use the power with interference of the Central or State government. In several cases the Supreme Court has directed the President to act as per the advice of the Council of Ministers while deciding mercy pleas.

Although Article 72 and 161 of the Constitution provides both the President as well as the Governor the power to pardon, the President has the superior hand. The President has the wider scope than that of the Governor. The President has the power to grant pardon where punishment is sentenced by a court martial, but the Governor has no such power. Also, the President can grant pardon in cases of death sentence but the power of Governor does not extend to cases of death sentences.

Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Conclusion

“I have always found that mercy bears richer fruit than strict justice” – Abraham Lincoln

Taking the thought forward, the President is one of the executive to have the power to provide a way of justice. Although the President does not has the absolute power and is governed by the Council of Ministers, there has been a significant amount of discussion regarding the constitutionality of the President having the power to grant pardon. The framers of the provision kept in mind the misuse of power that could happen in the line of justice. The provision of pardon helps create a check in the system, which the State can avail.


[1] Anonymous, https://www.advocatekhoj.com/blogs/index.php?bid=818515a96137da34755614124&bcmd=VIEW

[2] A.72, The Constitution of India

[3] A.161, The Constitution of India

Author: Srijeeta

Editor: Kanishka Vaish, Editor, LexLife India.

Analysis: Political comments by CDS (Chief of Defense Staff)

Reading time: 6-8 minutes.

India’s Ex-Chief of Army Staff and now the country’s first Chief of Defence Staff (CDS) Bipin Rawat, in uniform, while addressing a health summit event in New Delhi, on December 26, 2019, commented on the quality and values of a responsible leader while citing the incendiarism, violence, and destruction of public properties during demonstrations against the recent Citizenship Amendment Act (CAA).

There is no doubt that while this comment had not indicated any personality related to a political group, the comment had a clear context, that of CAA. The comment raised the following issues. First, what do Indian regulations and other nations like the US and UK rules say in this context?

Second, is this against the issuance of civilian control of the military doctrine of a stable liberal democracy? It also raises the question of the political activity of military persons while in active service.

Besides, former Navy Chief Ramdas termed CDS Rawat comments of being `wrong’ as well as being `partisan.’ The words `wrong and partisan’ have been used to view that the feedback was not politically-neutral. It leads to the third issue, why should the army be politically-neutral and non-partisan, and what do we mean by the term `partisan?’

Regulation: Army code of conduct and comparison

The Indian Army Act, Section 21 rules do not allow a military person to address at a meeting organized for a political or any other purpose by anybody or any organization. He is not allowed to speak to a press without prior government approval or publish any political book without prior consent.

In comparison, the US Military regulations have clear, strict rules to follow the Civilian Chief Commander irrespective of personal bias, including a defined preventive `partisan’ political activity and a defined allowed `non-partisan’ political activity.

This non-partisan political activity includes any issues not identified with any political organizations but also includes issues with constitutional referendum and amendments and without uniform. Alternatively, a partisan political activity is supporting issues identified with political parties or any organizations.

In the UK, army rules clearly state that a military person cannot participate in any political party or demonstrations subject to the condition that there is no such restriction if no uniform is worn, there is no disrespect to the service, and the duty is not blocked.

Reasons: A politically-neutral army

In political science, we find the existence of the doctrine of civilian control of the military that leads to a stable and thriving democratic state. In support, Kohn, in his essay on `civilian control of the military,’ views that the existence of the military is not to define the society, but to defend the society, while the Clausewitzian view of war emphasizes that the military should implement policies rather than formulating it.

Similarly, Huntington, in his book titled `The soldier and the State’ focuses on the objective of civilian control and a politically neutral soldier with a sense of distinct professional attitude that also prevents political interference.

Around the world, NATO prescribes a civilian control of military doctrine for its members as a precondition. Even the Maoist supports the party as the supreme and the military being subordinate to the party. No doubt, a lack of civilian control of the military leads to `a state within a state’ also synonymously known as the military dictatorship in an extreme form.

It is imperative to have a politically-neutral army in a country like India. Traditions of time-tested neutrality, highly co-related to professionalism, take years to build up through self-restraint, and impartiality. And India is a classic example of this.

Even in today’s contemporary short-life, dynamic social-values, hyper-polarised political environment, and spectrum, the army’s standing as a trusted altruistic professional institution serving the nation impartially, has the highest confidence of the nation’s public, and politicians. It is this army that provides security and confidence to vote without any fear and pressure. It endorses the peaceful change of power including civilian supremacy.

The army in turn, also requires the brightest and the best people with different political views but without any political test to remain professional and powerful. It will ensure that military personnel management will be non-political and non-partisan. If this approach is sacrificed, the first loss in this continuum will be the professionalism of the army.

At the same time, preference expressions by superior will impose limitations and uncertainty in the command structure leading to decision making based on trust or preference. The last loss will be a coup or a revolt.

And, finally, a uniformed military personal making a non-partisan (per US Rules) political comment will undermine the best efforts and ethos of the military.

Reaction: Public outcry

CDS Rawat’s leadership comments educed strident criticisms from various sources and on multiple media. It includes opposition and allied political parties, opposition leaders, retired military personals, activists, and on social platforms, online news, TV news and newspapers.

Summarily all the comments showed concern on the indictments of breaking the conventions by the Army Chief by commenting on internal affairs and thus violating the civilian control of military doctrine.

Of these, retired Navy Chief Ramdas elaborated on the code of conduct prescribing neutral political views for all military persons. Politician Sitaram Yechury of CPI(M) used Twitter to comment on a military person in uniform breaking the military institutional role. Politician Digvijaya Singh of the Indian National Congress (INC) used the opportunity to use a post-truth political comment on the ruling government based on the Army Chief’s comments on leadership virtues.

Besides, politician Brijesh Kalappa of INC used twitter to make remarks on constitutional democracy violation. He also commented upon the possibility of ruling government allowing military dictatorship. While politician A Owaisi of AIMIM showed concern on the professionalism of the army as an institution and civilian supremacy. Even politicians like KC Tyagi of JD(U), an ally of the ruling government, showed concern on the issue. All this was equally echoed by all TV news channels, leading newspapers, and online news portals through various activists.

Conclusion: The future and the implication

In conclusion, we find the emergence of two concerns. First is the Indian army personnel coming up with partisan or non-partisan political comments leading to the anxiety of losing the professionalism of the army and civilian supremacy by the political fraternity.

Second is the code of conduct itself. These are age-old rules and restrictions. Though military laws across the world including the Supreme Court of the US, have clearly said that the army does not have universal rights for speech. For them, the nation comes first. At the same time, we find that the army code of conduct in the US and the UK have more freedom than that of India. The Indian rules are of the British era which then had a different objective.

The solution to both the concern is through the development of ethical norms and professional norms than through legal restrictions to political comments. Europe and the US, are already onto this through human rights activists and organisations like OSCE, working on the frameworks on political expression restriction and guidance for such citizen-soldiers or service members to provide more political and civil autonomy through such merging of military people voices with the general community for full integration of total population.

Author: Shaily Baag from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

Revisited: Number of seats in the Lok Sabha

Reading time: 6-8 minutes.

During his address at the Second Annual Atal Bihari Vajpayee Memorial Lecture organised by the India Foundation in New Delhi, former President Pranab Mukherjee cherished the role of Vajpayee in consensus-seeking. He hailed Vajpayee as the leader who tried to take the populace along.

Pointing to the beauty of a parliamentary democracy, Mukherjee cited that the numerical majority gives the stability to a government, but majority of voters have never voted for only one party for all of their lives. Thus, the lack of popular majority forbids you from a majoritarian government.

In order to increase the efficiency of the Parliament, he also pointed out, inter alia, that there is a need to increase the number of Lok Sabha seats. He explained that the size of the electorate has become disproportionately large per elected representative.

It begs the question of whether the Members of the Parliament (MP) can realistically stay in touch with the people that they represent, to the foreground. He suggested that the number of seats in Lok Sabha should be raised to at least 1000 from the current 543.

Grounds on which no. of seats is decided:

The number of seats in Lok Sabha (as well as Rajya Sabha) is determined on the basis of the following factors: 

  1. Constitutional Mandate: The principle of proportional representation is embraced by the Indian Constitution under Art 81. It places an upper cap of 552 on the number of seats in Lok Sabha, but it is currently fixed at 543 by Parliament through law making powers vested in it. 
  2. Population: Representation of People’s Act, 1951 clarifies that the overall number of seats in Lok Sabha is determined on the basis of population of the country as per the official 10-yearly census. The number of seats were gradually increased from 489 in the first election in 1951 to the current 543 in 1971. After that, the 42nd Constitutional Amendment Act barred an increase in the number of Lok Sabha seats, which was extended to stay in effect till 2026 by the 84th Amendment Act.
  3. Proportional Representation: To ensure proportional representation, the Delimitation Act allows the Parliament to carry on delimitation of constituencies to equalise the MP:Voter ratio across all constituencies within each state. Last such activity was conducted on the basis of 2001 census, after which the Delimitation Act, 2002 freezed the activity till the next census after 2026.

‘Present strength is based on the 1971 census’ –President

Mr. Pranab Mukherjee, a veteran parliamentarian himself made a case for revisiting the delimitation provisions in an attempt to increase the number of parliamentarian constituencies in the country. He highlighted that the current number of seats are based on 1971 census data, which placed the population of India at approximately 54 crores.

The population has increased measurably since then, to around 1.34 billion. Of this large number, an MP represents around 1.6 million Indians. This proportion is significantly higher in developed and developing countries all over the world – 44,000 in UK, 65,000 in Italy, 192,000 in Mexico, 341,000 in Brazil and 360,000 in Indonesia. To put the picture to scale, the former President pointed out that UK has a larger 650 seats for a fraction of our population.

The constitutional hold on readjustment of number of parliamentary constituencies stemmed from the policy of the central government which encouraged the states to achieve positive population control. Since the states performed differently, it was considered unfair to allow increase in Lok Sabha seats on the basis of population, lest the states which were actually able to control the population explosion should be punished with lesser representation in the House of Commons. 

Problems faced while deciding seats:

Adequate representation becomes a challenge with the increase in the population. Common logic dictates that the population should be made the criteria for dividing Lok Sabha constituencies. While this may sound like a reasonable solution prima facie, it comes with its own set of problems:

  1. Punishing Educated States: The southern and western states of India took lead in population control through awareness and education, while the north Indian states continued with their population expansion. To put things into perspective, an MP from Kerala represents around 17 lakh people, while an MP from Rajasthan represents 27 lakh people. To readjust the number of constituencies based on population will result in the educated states getting a lower representation for the fault of effectively applying population control policies of the central government. 
  2. Welfare Indices Take a Toll: It is observed that states with higher population have lower human development and welfare indices. Population based readjustments awards inefficiency of the states by granting them higher representation in the Lok Sabha, thus empowering them to make decisions for the majority.
  3. Centralisation of Power: The federal nature of the Constitution encourages the Central Government (MPs) to work in coordination with the State Government (MLAs). Increasing the number of seats in Lok Sabha will lead to centralisation of power in the hands of MPs and dilute the role of State Legislatures. 
  4. Scope for Corrupt Practices: As goes the adage, political problems are directly proportional to the number of politicians. When the number of constituencies increased by breaking them into smaller areas, local leaders with vested interests may enter into politics, thus opening a backgate for corruption and malpractices. Further, the change in constituencies in the name of readjustment also allows gerrymandering to take place.

Gerrymandering:

Finding its roots in the American politics, the practice of gerrymandering refers to changing the boundaries of constituencies in a way that it shifts the probability of election in favour of a particular candidate by working out electoral arithmetic.

A report by Forbes found out that Madhya Pradesh and Uttar Pradesh are the least gerrymandered states while West Bengal and Assam are the most gerrymandered states.

Practically, however, each voter from a state gets an equal say, thus making any virtual gains from gerrymandering in India close to none. The Delimitation Commission of India draws up district boundaries based on recent census, but can’t change the number of seats each state has in the Lok Sabha.

The Commission comprises of members from Judiciary appointed after recommendation is made to the President by a collegium of senior judges. Thus, attempts have been made to make the system airtight and devoid of political intervention.  

Conclusion:

The former President strongly recommended that the times have changed and the electorates cannot be based upon a 50-years old census anymore. As of date, a party can win the majority in Lok Sabha by obtained a little above 30% votes.

In the opinion of the former President, each government should try to take all the members along, and not just the majority. Therefore, Mr. Pranab Mukherjee advocated that the constitutional ban may be lifted and readjustment of seats may be looked into.

Author: Samiksha Gupta from Symbiosis Law School, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.