Pardoning Power

Topics: President of the United States, Pardon, Separation of powers Pages: 8 (3403 words) Published: May 17, 2013
Judiciary must enforce the laws, whatever they be, and decide them according to the best of their lights. But the laws are not always just and the lights are not always luminous. The law in generality is needed to preserve the society, its norms and values. Every stream originating out of it has some socio-legal relevance which tries to protect and maintain the structure of society. Same is the case of clemency which is to preserve the most important aspect of society i.e. public welfare. Rationale behind the power of pardoning is that the public welfare should be better served by it. The constitutional pardon is given to those, upon whom punishment inflicted would cause greater harm to society than their release. Keeping in mind the system of checks and balances, the concept was introduced in the Constitution of India so as to safeguard the rights and interest of general public because nothing has been deemed to be infallible in this world. The judicial methods are also not always adequate to secure justice. Therefore the power to grant pardon exists to prevent injustice whether from harsh or unjust laws or from judgements which results in injustice. The word ‘pardon’ literally means ‘to forgive’. Article 72 and 161 of the Constitution of India gives the same power to the President and the Governor respectively to grant pardon with respect to a matter to which the executive power of the state extends. The concept was earlier contained in section 295 of The Government of India Act, 1935 and in section 401 and 402 of Code of Criminal Procedure, 1898. The power of appellate court was recognised under section 426, CrPC, 1898. The Code of Criminal Procedure of 1861 and 1872, confined the power of the executive to remitting at any time, the punishment inflicted on a person; the code of 1882 and 1898 conferred on the executive the additional power of suspending the sentence at any time. The code of 1861, 1872, 1882 and 1898 conferred on the appellate court power to suspend a sentence pending appeal, but the Codes of 1882 and 1898 provided that the power was to be exercised for “for reasons to be recorded in writing”. A detailed discussion in the constituent assembly, while framing the constitution, ended with the incorporation of the same concept under Article 72 and 161 respectively for the President and the Governors of the States. Chapter XXXII of the Code of Criminal Procedure, 1973 deals with the subject of Execution, Suspension, Remission and Commutation of sentences and in this chapter section 432, 433 and 433A deal with the power of Government to suspend or remit sentences, the power to commute sentences and the restriction on the aforesaid powers respectively. Unfortunately there are a lot of loopholes in the concerned provisions and procedure adopted. This tends to reduce the efficacy of the remedy. Liberal interpretation of the language creates much confusion and ambiguity as to the ambit and applicability of the law. The framework of the provision also does not provide full support as is required to make it effective. There have been many controversies regarding the vitality of the law, its practical applicability and the undue delay in the disposal of the petitions. Since Independence there had been only 309 odd mercy pleas which the President had to decide. Between 1997 and 2011 the President has disposed off 32 such petitions out of which 13 were done after a long awaited period of ten years. Latest RTI response reveals that 26 files of mercy petitions were recalled from Rashtrapati Bhawan out of which in most cases death sentence were reviewed by the Ministry of Home Affairs to be converted in to life sentence. It is unjustified to interfere so liberally with the Supreme Court decisions. At present, 12 petitions are pending before the President excluding that of Ajmal Kasab. The situation exactly fits into the parameters of the famous saying “Justice delayed is justice denied”. No set parameters are defined to...
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