Deviation from the path of rectitude by the President of India in his inaugural address of the new building of the High Court of Rajasthan on 7th December, 2019 vis-a-vis his powers of clemency/pardon under Article 72 of the Constitution of India.

P.L. Goyal, Advocate
District Courts Faridabad
(Retd. Additional District and Sessions Judge)

Date : 13/12/2019

Deviation from the path of rectitude by the President of India in his inaugural address of the new building of the High Court of Rajasthan on 7th December, 2019 vis-a-vis his powers of clemency/pardon under Article 72 of the Constitution of India.

The President is the Chief Executive of the Union of India and the executive power of the Union of India vests in him vide Article 53 of the Constitution of India.

Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves of remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in (a) all cases where the punishment or sentence is by a court-martial; (b) in all cases where the punishment is for an offence against any law related to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death.

Power to pardon is a part of the constitutional scheme which has been proposed by the people through the Constitution in the Head of the State i.e. the President of India who enjoys high status and such power rests on the advice tendered by the Executive to the President. The Head of the State has the authority by means of an executive act to tender pardons and reprieves and these functions can be discharged even before conviction.

Similar powers have been conferred upon the Governors in the States via Article 161 of the Constitution. Articles 72 and 161 can be reconciled by limiting the power of the Governors who grant pardon in cases not covered by Article 72. If so read the President alone will have the exclusive power to grant pardon in all cases where the sentence of death is prescribed.

Higher the power, the more cautious should be its exercise. The Constitution of India, in keeping with modern constitutional practice, is a constituted document fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional policy consisting of certain primary organs, institutions and functionaries to exercise the power provided in the Constitution. All powers belongs to the people and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order.

Power to pardon is a part of our constitutional scheme and it has to be so treated in the Indian Republic. Through the Constitution the said power has been reposed by the people on the Head of the State and the said power rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) must act in accordance with such advice.

In Kehar Singh v. Union of India, AIR 1989 SC 653, a Constitutional Bench of five Hon'ble Judges ruled that the order of the President regarding pardon cannot be subjected to judicial review on its merits except with certain limitations. It was also held that it was open to the President, in exercise of the power regarding pardon vested in him by Article 72, to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that accorded by the Court with regard to the guilt of, and sentence imposed on the accused. In doing so, the President does not amend or modify or supersede the judicial record which remains intact and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as the extension of it. And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. The legal effect of a pardon is wholly different from the judicial super-cession of the original sentence.

As the President is entrusted with the final power of pardon under Article 72, so he is expected to maintain a path of strict rectitude and not comment upon the desirability or non-desirability of the exercise of the said power even in the most ghastly and dastardly offences which may shock the conscience of the nation.

Recently, there was general outcry against gang rape and murder of a lady veterinary doctor in Telangana State in our country. The four alleged rapists/murderers were one fine morning in wee hours were shown to have been killed by the police during some encounter. The picture of encounter projected by the police did not convince the intelligentsia. However, the outrage against the rapists/murderers was so extreme in nature that the general public applauded the police officers who performed this encounter. People by and large abandoned the concern for the Rule of Law in the country.

When the outcry against the rapists and murderers was in the full swing then in that very period there was inauguration of the new building of the High Court of Rajasthan on 7th December, 2019. The inaugural function was presided over by Sh. Ram Nath Kovind, the President of India. In the select gathering were present the Chief Justice of India, Law Minister of India, various Judges of the High Court, and various advocates etc. The President, while speaking in the said gathering, also touched the resentment going on in the psyche of common man because of the recurrent events of gang rapes and murders. While addressing the audience the President advised the parliamentarians to amend the law to the effect that the provision of pardon in death penalty was deleted in the cases falling within the ambit of POCSO Act, 2012.

It is true that the President is also after all a human being who cannot remain aloof and in complete isolation from the public cries. Yet he being the repository of the powers of pardon under Article 72 should have maintained a discreet silence. Some clemency petitions of the offenders involved in gang rape-cum-murder cases are already pending with the President and many more may come before him in the near future. In such a situation the authority exercising the power of pardon should maintain a path of rectitude. Otherwise the applicants who have moved the mercy petitions or who are to move such petitions will lose confidence in the impartial exercise of this power by the Head of their State who has already expressed disapproval in the matter of granting pardon in such cases. Even the Courts are not infallible. May be in one thousands of cases is such where conviction is recorded by the Courts without there being solid reasons behind the same. Such an error can be rectified by the Head of the State via Article 72 of the Constitution. Even though the power under Article 72 is executive in nature, but it cannot be denied that functions intended to be performed there-under should have no tinge of bias or arbitrariness therein. If there is power to decide any matter then duty to act judicially without prejudice to any person is implicit. Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections or opinions.

Let me hasten to add that our worthy President is a noble soul and I hold him in highest esteem otherwise. The idea of penning these lines through this write up just cropped up in my mind as I thought that the utterance by the worthy President recommending deletion of pardon powers in such matters could perhaps be avoided.

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