Pardoning Power and Judicial Review

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Introduction:

Matthew 18:21-22
Then Peter came to Jesus and asked, “Lord, how many times shall I forgive my brother when he sins against me? Up to seven times?” Jesus answered, “I tell you, not seven times, but seventy-seven times.” Theologically, almost all religions believe in the concept of mercy and forgiveness for the person who repents his wrongful action. A pardon is the forgiveness of crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent authority like church. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. Today, pardon is granted in many countries when individuals have demonstrated that they have fulfilled their debts to society, or otherwise deserve, in the opinion of the official, of a pardon. Pardon is some times offered to persons who might have been wrongfully convicted.

India too has the constitutional provision for pardon of people prosecuted under criminal provisions of law. It has been observed that there is some controversy, at least in the intellectual community, over the various aspects of the provisions of pardon in India.

Background:
Justice Marshal of the US Supreme Court put pardon in Wilson’s case in 1833 as ‘an act of grace, proceeding from the power entrusted with the execution of the laws’. But this view was challenged by Justice Holmes of US Supreme Court where he pointed out that pardon as of today is not an act of grace but is a constitutional scheme which when granted is determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgement fixed. There has been an intense debate for quite a while regarding the need for pardon and the various characteristics associated with it. 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.

Why then do so many democracies still have the some-what archaic provision to grant pardon? For it is an echo of archaic provision- an omnipotent ruler who was vested with powers to bestow his benevolence once in a while totally based on his whims and fancies. It is the view of all those who support the provision that this provision acts as a safety valve in exceptional cases where the legal system fails to deliver a morally or politically unacceptable result and hence secures public welfare. Furthermore, since the criminal justice system is not retributive as of old, but rehabilitative, it is claimed that there should indeed be provisions for pardon.

The Power to Pardon includes the power to commute (when death sentence is commuted to one of life imprisonment), the power to reprieve (withdrawal of a sentence for a while thus postponing the execution of the sentence), power to remit the punishment, in whole or in part.

The relevant constitutional provisions regarding the grant of pardon, remissions, suspension of sentence, etc. by the President of India and the Governor of a State are as follows:
Article 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 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 a matter to which...
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