PRESIDENTIAL PARDON – CAN IT BE SUBJECTED TO JUDICIAL SCRUTINY

This is a paper I wrote which is based on The Presidential Pardon for Capital Punishment.

Let the will of the people prevail

The Constitution of India is the supreme law of the land and it enshrines the will, the aims and the aspirations of her 300 millions of people (at the time of the enactment of the Constitution in 1950), who “give to ourselves this Constitution”. The Constitution evolves a doctrine of three organs, namely the Executive, represented by the will of the people exercised through an electoral mandate of the people, the Legislative and the Judiciary for the governance of the Nation, though a separation of powers, in its absolute and rigid form between these organs of governance has not been defined in the constitution by the Founding Fathers of the Constitution. However, “the concept of reasonableness and non-arbitrariness pervades the entire Constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution”[1]. Under this Supreme Court decree, the doctrine of Separation of Powers somewhat gets defined to a limited extent that there should be no overlapping of either functions or persons from amongst the above three organs of governance.

The will of the people is the corner stone of any democracy. The constitutional principle that the Executive organ shall exercise the will of the People places an obligation upon the Executive to be accountable to the People for managing the affairs of governance. This accountability differentiates democracy from any other system of governance. Under this principle, it can be reasonably concluded that the Constitution does not contemplate an exercise of an overriding authority nor the power to superintend the exercise of the powers and functions of mandated accountability vested upon the Executive by the Constitution, to some extent over the Executive by the two organs, namely the Legislative and the Judiciary, primarily since the Constitution has not bestowed upon the Legislative nor the Judiciary a mandate to be accountable to the Will of the People. In other words, it would be reasonable to conclude that by this Constitutional principle, the Judiciary does not possess an amorphous supervisory power to supervise the functions and powers vested to the Executive organ in so fat as much that the exercise of the Executive power and functions conform to the Constitutional principles mandated upon the Executive for governance. The constitution, however, as a measure of abundant caution provides for the Judiciary to exercise a power of a watch dog to shape the governance of the Executive to ensure the Rule of Law in accordance with the provisions of the Constitution.

Capital punishment in India or the death penalty (Death by hanging) has been on the statute books since 1860. The death penalty has been imposed on conviction of such offences as murder, instigating a child’s suicide, treason and mutiny, acts of terrorism etc. The Supreme Court has laid down that this punishment is to be imposed in the “rarest of rare cases”, albeit, the meaning of the law declared by Supreme Court has not been clearly defined by the Apex Court. In the absence of clear guidelines for applying the sentence of death penalty, judges have a great deal of discretion in deciding capital punishment. As a result, whether an accused is hanged for a particular crime largely depends upon the views and discretion of the individual judge at the trial stage, given the facts and extenuating circumstances of the case.

The death penalty is the ultimate, inhuman and degrading punishment. The death penalty violates the fundamental human right, that is, the right to life as enshrined and guaranteed under Article 21 of the Constitution and the right to life guaranteed under Article 2 and 5 of the Universal Declaration of Human Rights. It follows that the sentence of death penalty needs to be viewed in the critical light consistent with a country’s commitment to democracy and Human Rights obligations. It needs to be said with some hesitancy that the beacon of human rights fall short of the Universal Declaration of Human Rights even in many established democracies including India. In principle, therefore, trials should be extremely fair and the question whether the accused has been found guilty to be visited with the death sentence should confirm to a standard of fairness regarded by a civilized judicial system in conformity with Human Rights. In the event the answer to this principle is “No”, then it cannot be said that there is a case to award death penalty, even “in the rarest of rare” cases. In the Indian Legal System, it is clear that not all the accused who are visited with the death penalty had access to a fair trial and/nor legal representation at various stages of judicial process for a variety of reasons. Therefore when a legal process, which falls considerably short of international fair trial standards, has made an imposition of a death sentence then clearly the danger of the death penalty will be a clear miscarriage of justice and therefore justice under such conditions can never be guaranteed. Without casting aspersions on the road map of judicial access to a fair trial which may be made available to an accused of common stature in India, who has been visited with a death sentence under the above conditions, then it is a clear case that the execution of death sentence in such a case will be irrevocable and can be inflicted upon an innocent. Therefore the application of death sentence is subject to human fallibilities and failure and/or denial of access to a fair trial in a judicial process. This unfortunate position, if reached in the judicial process, is best summed up in the words of Justice PN Bhagwati of the Supreme Court in the Kehar Singh case of assassination of smt Indira Gandhi – “The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very light possibility and it is not at all unlikely that so long as a death penalty remains a constitutionally valid alternative, the Court or the State acting through the instrumentality of the Court may have on its conscience the blood of an innocent man”.

In a civilized world “the whole goal of punishment is curative. Accent must be more on rehabilitation rather than retributive punitivity inside the prison[2].” Statistically, in India since the time of independence, 55 cases of death sentence has been executed, the last execution by hanging being 14th August 2004, that of Dhananjoy Chaterjee, and an estimated 20 cases of death sentence détentes is now under the consideration for Presidential Pardon, after exhausting all other legal avenues for the remission of the death sentence. A case for the abolition of the death penalty from the judicial system has gained momentum and credence, for the simple reason that the award of the death sentence has not known to produce a deterrent factor in the commission of offences and is a violation of the fundamental right to life as guaranteed under the Constitution. In the words of the Father of the Nation, Mahatma Gandhi “I cannot in all conscience agree to anyone being sent to the gallows. God alone can take life because he gives it”. Dr Abdul Kalam who recently laid down the high office of President has also expressed this philosophy “I cannot give life to anyone, I don’t see why I should give death” and eposes that convicts under death sentence need to be treated with compassion, counseling and spiritual guidance instead if condemning to the gallows, whilst pleading for Presidential pardon to be granted in the above estimated 20 cases of death sentence awaiting Presidential pardon during his Presidential tenure. As a matter of record, Dr Abdul Kalam inherited 12 cases of feath sentence for presidential pardon from his predecessor namely Shri K R Narayanan and has now left to his successor, Smt Pratiba Patil the sensitive and controversial dossier of Presidential pardon in the estimated 20 cases of death sentence détentes awaiting the execution of death.

Article 72 and Article 161 of the Constitution enshrines the power of the President and that of the Governor respectively to grant pardons etc. and to suspent, remit or commute sentence in certain cases. In the exercise of this power under Article 161, the Governor of Andhra Pradesh in 2006 granted pardon to Gowru Venkata Reddy, an individual with political leanings who was convicted 10 years imprisonment in a murder case. The grant of this pardon was challenged by the Supreme Court and the Bench of the Supreme Court comprising of Justice Arijit Passayat and Justice S H Kapadia in August 2006, proceeded to examine and review the constitutional provisions of the Presidential power to grant pardon. This decision of the Supreme Court has sparked off a debate and case as to whether the Apex Court is constitutionally empowered to review the inherent power of the president as vested in Article 71 on the Constitution to grant pardon. The case of Mohammad Afzal Guru, a Kashmiri militant awarded the death sentence for the attack on parliament in 2001 has also appealed for Presidential pardon and the decision of Supreme Court to review the power of the President to grant pardon under Article 72 has ignited the above debate, leading to questions of judicial activism or judicial interference in the governance of the state by the Executive organ of the Constitution.

Article 53 of the Constitution enshrines the Executive Power of the Union “the Executive Power of the Union shall be vested in the president and shall be exercised by him either directly or through officers subordinate to him in accordance with this constitution”. The President is therefore the head of the Executive organ of the Constitution, which enjoys the mandate and will of the people. The expression “executive power” is not defined anywhere in the Constitution, but it is now a well established principle of law that the Executive exercises the powers of the subordinate legislation and administrative justice. For the reasoning made out above with regard to the mandate of accountability enjoyed by the Executive it may be said that the Executive function overrides the claims of the other two organs namely that of the Legislative and the Judiciary.

Article 72 of the Constitution enshrines that “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” and more specifically under Article 72(c) “in all cases where the sentence is a sentence of death”. It is clear that the power vested in the President under Article 72 is a prerogative and discretion of the President. The dictionary[3] meaning of prerogative is “a right or privilege that nobody else has,”, “a special superiority of right of privilege”, “having or exercising a prerogative.”

A pardon is an act of grace, which may be absolute or conditional. The act of pardon and the power to grant pardon is best summed up in Balmukund Vs King Emperor, where the Judicial Committee said “the tendering of advice to His Majesty as to the exercise of the prerogative of pardon is a matter for the executive Government, and is outside their lordships province”. The reason why the Executive, represented by “the lordships province”, is given the power to grant pardons and reprise etc., is explained by Chief Justice Taft in an American case[4] “Executive clemency exists to afford relied from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the court is not necessarily always wise or certainly considerate of circumstance, which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”

The Apex Court in the past, in Kehar Singh Vs Union of India declined to lay down any guidelines for the exercise of the President’s power under Article 72 of the Constitution and unanimously held “it seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as exiting case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly define and sufficiently channelised guidelines, for we remember that the power under Article 72 is of the widest amplitude, can contemplate myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of state may be profoundly assisted by prevailing occasion and passing time”. There is a fit case now for the Supreme Court to lay down the broad guidelines to aid and advice the President in exercise of the power under Article 72 in the event should the President receive aid and advice from the Council of Ministers which may appear to be blatantly violate the broad guidelines laid sown by the Supreme Court.
[1] Ajay Hasia v. Khalid Mujib (1981) 1 SCC 722, 741, Also Kasturi Lal v. State of J & K. (1980) 4 SCC 1.
[2] Nadella Venkata Krishna Rao vs. State of AP – AIR 1978 SC 480: 1978 Cr LJ 641: 1978 SCC 208: 1978 SCC (Cr) 799
[3] World Book Dictionary – prepared and published by the World Book Incorporated, Publishers of World Book Encyclopedia
[4] Ex parte Grossman, 267 US 87:69 L Ed 527