Power of President to Grant Pardon: Indian Scenario

Editor’s Note: The power to pardon is one of the powers which have been conferred on the
executive. Article 72 confers this power on the President and Article 161 does the same on the
Governor. This power has been provided to heads of various nations. In monarchies this power is
vested with the Kings of those countries and it has been exercised for centuries, but with the passage
of time and the changing nature of constitutional law it has taken a new form now.  The nature and
scope of this Article has changed drastically after the Court has started to look at the Article in a
broader manner. The author has made an effort to discuss all these issues to get a complete
understanding of the pardoning power under the Constitution of India.

Introduction

“A Pardon is an act of grace, proceeding from the power entrusted with the execution of
laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a
crime he has committed”[i]

In earlier times it was used by the Kings for their political gains, it helped them in generating
revenues. While now in the modern day understanding and use of pardoning power is more often
associated with notions of mercy and fairness, this analysis will demonstrate that it also remains
squarely in the political arena. Called pardons, amnesties, clemency, “grace”, or mercy (as in
Sweden), the pardon power is included in the written constitutions of nearly all countries.

There are various reasons for the study of this area. The President’s power to pardon deals
with providing justice which is essentially a function of the judiciary. The reasons for this
interference of the executive in the functions of the judiciary have to be explored, understood and
appreciated because it is an obvious exception to the doctrine of separation of powers which is one of
the most eminent doctrines in the Constitution of India. The executive gives an absolute power of
pardon to the executive. The likelihood of abuse of such a power is immense. Therefore, an analysis
of case law with regard to presidential pardon is very important. Pardon is a concept based on mercy,
therefore, mercy as a concept has to be studied and the question why mercy is vested with the
executive and not with the judiciary has to be looked into.

In the process of answering these questions the researcher also intends to look into some
other aspects of this power. One such aspect is to look into the wording of the Article. It is very
important to note the way the Courts interpret various Articles and what was the intention behind
framing such an Article. There are different ways in which an Article or a Section can be interpreted.
The importance of wording of Article and its interpretation can be best understood by looking at
Article 21 of the Constitution. The nature and scope of this Article has changed drastically after the
Court has started to look at the Article in a broader manner. Similarly looking at this article’s words
helps us to understand in a better manner. In addition to this there are other issues as well
like foreigners applying for pardon, judicial review of pardon and the guidelines for exercise of
pardon power. The researcher has made an effort to discuss all these issues to get a complete
understanding of the issue.

Position in Other Jurisdictions

 The pardon power of the executive has its roots in the English history. The ancient English
theory with respect to executive pardon is that all powers of government originate from the King, it
was the King’s peace or the peace and good order of the King’s realm which was offended by crime;
hence, the King could bestow his mercy by pardon.[i] Meanwhile the American theory is established
upon the principle that all governmental power is inherent in the people. Hence, crime is an offence
against the people, prosecuted in the name of the people, and the people alone can bestow mercy by
pardon. As subsequently is noted, the people may confer the pardoning power upon any officer or
board that they see fit.[ii]

To understand the concept of president’s power in India it is important to look at the

pardoning power in England and also in the United States of America. The British Crown enjoys the
privilege to grant pardon to any criminal. However it is not an absolute privilege, it is to be done
under ministerial advice. However, this power is immune to the concept of judicial review. There is
no time specified to grant pardon, it can be done before conviction as well as after it. The Crown also
has the power to grant reprieve as well, it may just temporarily suspend the execution of the
sentence; or may remit the whole or part of the penalty.[iii]

In United States of America, the President derives this power to grant pardon from Art. II,
Sec. 2(1).[iv] This power is unlimited and can be exercised in case of all the offences with the
exception of impeachment. There is no time frame for the exercise of this power; it may be exercised
at any time after the commission of the suit. Like England there is no judicial review of this power.
However, in addition to that there is no legislative control as well. It is not considered to be a private
act, but it is included in the constitutional scheme. Now the researcher would like to see at the
development through case laws.

In United States v. Wilson[v] Chief Justice Marshall, speaking for the Court, said that: As this
power had been exercised from time immemorial by the executive of that nation whose language is
our language, and to whose judicial institution ours bear a close resemblance; we adopt their
principles respecting the operation and effect of a pardon, and look into their books for the rules
prescribing the manner in which it is to be used by the person who would avail himself of it. A
pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he
has committed. It is the private, though official act of the executive magistrate, delivered to the
individual for whose benefit it is intended, and not communicated officially to the Court. A pardon is
a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.
It may then be rejected by the person to whom it is tendered; and if it be rejected, we have
discovered no power in a court to force it on him.’ Marshall continued to hold that to be noticed
judicially this deed must be pleaded, like any private instrument.

In the next case which came in front of the Court was that Ex parte Garland [vi]. The Court
talking about pardon said that:
 
A pardon reaches both the punishment prescribed for the offence and the guilt of the
offender; and when the pardon is full; it releases the punishment and blots out of existence the guilt,
so that in the eye of the law the offender is as innocent as if he had never committed the offence. If
granted before conviction, it prevents any of the penalties and disabilities consequent upon
conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and
restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit
and capacity.
 In United States v. Klein,[vii] it was held that: Constitution has given separate powers to all
the three branches of government, and if legislature makes a statute which limits the power of the
executive to pardon a person from an offence committed by him, then it such a case it is infringing
upon the power of the executive by the legislature, and thus it would be unconstitutional. Meaning
therefore, that there can be no legislative control over the pardoning power of the executive.

The issue related to the civil and political rights of the offender was discussed in the case
of Knote v. United States.[viii] The court said that once the pardon has been granted to a particular
person, then all his civil and political rights are restored, which were suspended earlier. However, the
court said that the person cannot be compensated for the loss he suffered during the time of
confinement.

Pardoning Power under Indian Constitution

Before the commencement of the Indian Constitution, the law of pardon in British India was
the same as in England since the sovereign of England was the sovereign of India. The Government
of India Act, 1935, recognized and saved the right of the Crown or by delegation to Governor-
General to grant pardons, reprieves, respites or remissions of punishment. Section 295 of the Act,
1935, had conferred on the Governor-General acting in discretion power to suspend, remit or
commute sentences of death. The prerogative of the Crown was also delegated to the Governor-
General by the Letters Patent creating his office, empowering him to grant to any person convicted
by any criminal offence in British India, a pardon either free or subject to such conditions as he
thought fit.[ix]

In India, the power to pardon is a part of the constitutional scheme. The Constitution of India
conferred the power on the President of India and the Governors of States.[x]

Constitutional Provisions:

Article 161 is the corresponding provision relating to the mercy jurisdiction of the President,
Article 72 it envisages that the Governor has the power to grant pardons etc., and 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”. The executive power of the state extends to
matters with respect to which the legislature of the State has the power to make laws.[xi]

Article 72(1) of the Indian Constitution confers the power on the President to grant pardons and
commute sentences in the following cases:
 In all cases where the punishment or sentence is by a Court Martial.
 An 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.
 In all cases where the sentence is a sentence of death.
Article 72(1) says 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 passes by
a Court Martial.

Reasons behind Pardoning Power:

The pardoning power is in derogation of the law. Implying that if laws could always be
enacted and administered so they would be just in every circumstance to which they are applied,
there would be no need for the pardoning power.[xii] Therefore, the power to pardon is meant to be
used in those circumstances where it would not be in the interest of justice to strictly apply the law
even if the circumstances call for the same. Executive clemency exists to afford relief from undue
severity or plain mistake in the operation or enforcement of the criminal law. The administration of
justice by the Courts is not necessarily always wise or certainly understanding of circumstances,
which may properly alleviate guilt. It is a check entrusted to the Executive for special cases.[xiii]A
country would be most imperfect and deficient in political morality without a power for clemency.
[xiv]

Wording of the Article:

It is very important to look at three words to understand the correct interpretation of the
article. These three words are ‘punishment’, ‘sentence’ and ‘offence’. The first two words show that
the pardon by the President will save a person from the consequences of an offence and from a
punishment as well. The researcher at first would like to look at the word ‘offence’.  The manner in
which it is used makes it quite evident that that the punishment and sentence we spoke about are in
respect of the offence committed. This implies that the punishment which is supposed to be pardoned
has to be in respect of an offence and not for any simple breach of a condition.[xv]

The reasoning that is given for the above said statement is derived from the meaning of the word
offence as it is given in the General Clauses Act, 1897.[xvi]It is difficult to say that the same
definition cannot be applied to Art.72 as well. It has been said that in reality it is this definition only
which is used in this Article. It is said that the power of pardon that has been granted, can be used in
following cases:
 In respect of an act which, in the eyes of law, is an offence
 Which offence is in respect of a matter over which the executive power of the Union extends
and,
 For which punishment has already been adjudged.[xvii]

It is a well established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes of the
law.[xviii] Thus if a person has not been given a chance of a fair trial or a proper investigation has
not been carried out against that person, then there is no reason why that person should be given a
pardon, because he is still innocent. Therefore, it is important to note that the pardoning power can
be exercised only in the case of a convicted person only.

However, in some of the cases the Court has said that the pardon can be granted even before
conviction or trial by a Court. This principle was laid down in the case of In Re: Maddela Yerra
Channugadu and Ors[xix]; it was said in the case, “The pardon power includes not only that of
granting absolute and unconditional pardons, but also that of commuting a punishment to one of a
different sort than that originally imposed upon a person. It may be exercised at any time after the
commission of an offence, either before legal proceedings are begun or during their pendency, and
either before or after conviction.” This decision was affirmed later in the cases of K.M.
Nanavati v. State of Bombay[xx] and and RamdeoChauhan v. State of Assam[xxi]

Now let us look at another situation, if the trial of a person is held not by courts but by a tribunal.
Can we say that the act for which the trial has taken place in the tribunal is also an offence? The
general situation will be that of non-compliance of the terms of a certain contract and therefore,
termination of the same.  The answer would be no, as in such a case the term, ‘breach of conditions’
is used and not the word offence. To be more precise, the word offence can be used only in the case
when the act done falls within the scope of the word offence as it is defined in the Indian Penal Code.
In addition to this it is important to note that the person should be inquired under Code of Criminal
Procedure, because if it is done under an Act which does not characterize the act as an offence, then
the word punishment would not hold the same meaning as it is meant to be in Art.72. This issue has
been discussed in Maqbool Hussain v. State of Bombay.[xxii]

The same issue was discussed in S.A. Venkataraman v. Union of India;[xxiii] the Court in this
case held that: Before Article 20(2) could be invoked, it is essential that the earlier prosecution must
have been under the Act which created that offence. After looking at these two cases it is evident that
before the question of the exercise of the power of the President to grant pardons can arise the person
to whom pardon is granted must have been awarded punishment or sentenced by a competent court
of law or judicial tribunal.

Distinction between Pardon and Amnesty:

The issue that is discussed under this head is that whether there is a difference between
amnesty and pardon. Taking the situation of revolts, in such cases the head of the state makes a
proclamation that the rebels who surrender would be granted pardon and all their offences will be
omitted. Can we say here that the President has the power to do so under Art.72? If we look at the
situation more closely then we can see that irrespective of the words used by the President in the
proclamation actually does nothing more than giving a promise to the rebels. Therefore, even if the
word pardon has been used in the proclamation, in actual the action of the head of the state does not
amount to pardon from a punishment. The reason being, at the time of the issue of declaration no
person would have been awarded any punishment. As said earlier that it is important to prove a
person guilty before he can be granted pardon, it is important to prove that a person has participated
in a rebellion. Therefore, before granting pardon it is important to prove in the Court that the person
has participated in the rebellion.

Pardon is granted to a specified individual while the promise not to take action on the rebels
surrendering arms is addressed to an unspecified body of rebels. Such an action therefore may not be
termed grant of pardon in the sense in which the expression is used in Art 72. Thus the President
does not have the power of granting amnesty to rebels. This power is vested only with the
Parliament. It is important to note that the power given under Art. 72 is not unlimited, it is only in
respect to the offences mentioned in the sub-clause (a), (b) and (c) of clause 1 of the Article. The
President can exercise his power only in respect of the subjects to which the executive power of the
union extends. Thus, it is clear that pardon and amnesty differ in their import and therefore amnesty
does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power:

There is a big question that whether the principles of natural justice be applied to Art. 72 and
Art.161. The researcher at first would look at the arguments favouring the application. Though the
power to grant pardon is executive, it is more quasi-judicial in nature.[xxiv] A quasi-judicial body
would impose a duty to act fairly.[xxv] The Supreme Court has held that the constitutional safeguard
enshrined in Article 21 extends to the executive disposal of mercy petitions.[xxvi] As a part of the
constitutional scheme, Article 72 is subject to the discipline of Article 21. Therefore, the accused
should have a minimal right to fair hearing.[xxvii]

On the other hand there have been cases in which the Court has said against the application of
natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab [xxviii]that the
power of the government is executive in nature and the principles of natural justice cannot be grafted
thereon by means of judicial innovations and activism. Since the principles of natural justice have
been applied at each stage of the sentencing procedure, it may legitimately be done away with at the
executive stage.

Time Frame for the Exercise of Power:

Even in this area there is a debate as to whether we can have a time frame for the exercise of
the pardon power. The Supreme Court has taken both the stands and the researcher would present
both the view points. It has been observed by the Supreme Court that a period of anguish and
suffering is an inevitable consequence of sentence of death but a prolongation of it beyond the time
necessary for appeal and consideration of reprieve is not.

Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of
the view that delay in the decision of the President causes avoidable mental agony and suffering to
the convict. Therefore, to contain such unnecessary harm to the convict there should be a time frame
during which the executive has to give its decision.

Article 21 demands that any procedure, which takes away the life and liberty of persons, must
be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till
the last breath of the life. If there has been an inordinate delay in the disposal of a mercy petition
then procedural fairness is vitiated and Article 21 is violated.[xxix]Therefore, there should be a time
frame for the disposal of a mercy petition.

However, there is a different point of view as well. In this the Court has taken a different
stand from that taken by the Court in earlier cases. The time taken by the executive for disposal of
mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may
also depend upon the number of mercy petitions submitted by or on behalf of the accused.
[xxx] Moreover, no fixed delay can be considered a fixed period.[xxxi]The court, therefore, cannot
prescribe a time limit for disposal even of mercy petitions.

The Case of Presidential Self-Pardons:

This is another issue which needs to be looked at, whether the executive has the power to
grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine the
public’s confidence in Presidency and the Constitution. It is also against the principles of natural
justice, that a person should judge himself. In the case of Calder v. Bull,[xxxii] the Supreme Court
expressed its view against allowing a person to be self-judge.[xxxiii]

In one of his writings Madison wrote that, “No man is allowed to be a judge in his own cause,
because his interest would certainly bias his judgment, and not improbably, corrupt his
integrity.”[xxxiv]

The same principle was followed later in the case of Spencer v. Lapsley [xxxv]in addition to
these judgments there has been various other cases which unanimously state the principle that no
man shall be judge in his own case. The case indicates that not only is this a venerable principle of
philosophy and history, it is an essential part of the structure of our constitutional government.

Like other issues this one also has the other side of the argument where one can argue that
self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the President
has to act on the advice of the council of ministers while granting pardon. Now, since the council of
ministers can be tried and put on trial for a criminal offence the question, which arises, is whether
they can pardon themselves. Article 72 of the Constitution creates no exception to the President’s
power to pardon in order to invalidate self-pardons. Therefore, theoretically, a self-pardon by the
council of ministers is very well possible.

Foreigners and the Pardoning Power:

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of
Paragraph A of the “Procedure regarding petitions for mercy in death sentence cases.” Petitions for
mercy submitted on behalf of a convict under sentence of death shall be dealt with mutatis
mutandis in the manner provided by these instructions for dealing with a petition from the convict
himself. The petitioner on behalf of a condemned convict shall be informed of the orders passed in
the case.[xxxvi] If the petition is signed by more than one person, it shall be sufficient to inform the
first signatory. The convict himself shall also be informed of the submission of any petition on his
behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners
making petition for mercy to the President of India on behalf of any of the convicts. Looking to the
very nature of the power to grant pardon or clemency, applications or petitions for mercy by
foreigners will have to be considered on the same footing as those submitted by Indian citizens. In
light of the above, it can be inferred that there is nothing to bar a foreigner from applying for mercy.

Article 72 and Impact of other Statutes:

The conflict of Art .72, with another statute, came before the Court in the case of Maru
Ram v. Union of India.[xxxvii] The issue in this case was, whether S. 433-A of Criminal Procedure
Code, would affect the Art.72 and Art.161 of the Constitution. It was argued that since Sections 432
and 433-A, are statutory provisions, and modus operandi of the Articles 72 and 161, therefore it
would render Article 433-A ineffective. The reason for this was that, it was different from the other
two sections and therefore it would be against the Constitutional Provisions. However, the court held
that although the powers under Art. 72 and Art. 161 and Sections 432 and 433-A may be similar, but
they are not identical.
This decision was later affirmed in Ramdeo Chauhan v. State of Assam,[xxxviii] it was held
that the power under Article 72 and Article 161 of the Constitution is absolute and cannot be
hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by any
prison rules. A similar question came up before the Court in the case of Madhav Shankar
Sonawane v. State of Maharashtra,[xxxix] here the issue was that whether Section 307 of the Indian
Penal Code, read with Section 34 of the Indian Penal Code, which has a sentence of minimum of 25
years after conviction, places a limitation on the exercise of power under Art.72. The Bombay High
Court in the above case held that it is not allowed to the Courts to hold that a convict shall have to
undergo a minimum period of sentence even with an exercise of constitutional jurisdiction by high
constitutional functionaries under Article 72 and 161. After looking at all these cases, it can be
concluded that in n o situation can any legislation place a limitation on the power under Art. 72 and
Art. 161.

Judicial Review of Article 72:

Supreme Court in Maru Ram v. Union of India,[xl] said that the power of pardon,

commutation and release under Art. 72 and Art.161, “shall never be exercisable arbitrarily or mala
fide and, ordinarily, guidelines for fair and equal execution is guarantors of the valid play power.”
In Kehar Singh v. Union of India,[xli] it was said that the order of the President cannot be subjected
to judicial review on its merits except within the strict limitations defined in Maru Ram’s[xlii] case.
Looking at these cases, the Court did not actually call for judicial intervention. However, in Swaran
Singh v. State of U.P,[xliii] the Supreme Court invalidated the remission of sentence by the Governor
because some material facts were not brought to the knowledge of the Governor. Not only this, the
Supreme Court had asked the President to reassess his decision when it was of the view that the
decision of the President was totally arbitrary and unfair.[xliv]
In another case the Governor decided to grant pardon to 66 life convicts and there was a petition
under Article 226 by 10 other convicts claiming that their cases satisfied the criteria relied upon by
the Governor in granting concession, it was held that it is for the Governor, on the suggestions of
concerned authorities, to deal with remissions of punishment or to commute the sentence.  It was
held that the High Court cannot appropriate the power of the Governor in a petition under Article
226 of the Constitution and grant pardon to the petitioners.[xlv] It is clear from the above case that
the Court cannot usurp powers to grant pardon itself based on the criterion followed by the President
and can in no circumstance reverse the decision of the President. Therefore we can conclude that the
Courts can exercise judicial review over the exercise of pardon in a very limited sense to correct an
unfair or arbitrary decision.

Pardoning Power and Judiciary

The President while exercising the power under Article 72 can go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme
Court. The power under Article 72 entitles the President to examine the record of evidence of the
criminal case and to determine for himself whether the case is one deserving the grant of the relied
falling within that power. He can, on scrutiny of the evidence on record in the criminal case, come to
a conclusion different from that recorded by the Court in regard to the guilt of, and sentence impose
on, the accused. In doing so, the President does not amend or modify or supersede the judicial
record. The judicial record remains intact, and undisturbed. Therefore, there is no interference with
the functions of the judiciary. The administration of justice by the courts is not necessarily always
wise or certainly considerate of circumstances, 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 improve or avoid particular criminal
judgments. It is only a check entrusted to the Executive for special cases. It is clear that the powers
vested in the President of India under Art. 72; in the Governor under Article 161 of the Constitution
and in the State Government under Section 401 of the Criminal Procedure Code are essentially
executive powers of mercy which operate in completely different fields. The trial of criminals and
the passing of sentences are purely in the domain of the judiciary whereas the execution of sentences
is purely with the Executive Government. Thus it is clear that the orders under Article 72 are
essentially and basically executive orders in a completely different field.[xlvi] The Head of the
Executive exercises his powers of mercy under the Constitution commonly known as ‘mercy
jurisdiction’. Since, no such powers are vested with any judicial organ; there can be no infringement
upon its functions.[xlvii]

Conclusion

As seen that Presidential pardon is one of the powers that been given to the executive by the
Constitution. The researcher in his conclusion would like to look back at the issues discussed and
analyze them.
 The first issue that the researcher would take up is the importance and necessity of pardoning
power. It is very important to have this power in Constitution of all the countries. The reason for this
being that there should be some authority which should be present to keep a check and rectify the
mistakes made by the judiciary. The legislature can also do this, through a process of passing a law.
But, in the case of individuals it is not possible for the legislature to pass a law. In such cases the
executive can pardon the individual. This process is also important because awarding death penalty
to someone is the highest punishment that can be awarded to anyone. Thus, it is important to review
it by the Head of the State.

There is a necessity on the part of the legislature to bring an amendment to the constitution, to
prevent the use of power in one’s own case. Meaning that there should not be any self-pardoning on
the part of the executive. The reason for this being that in such a case there would be a bias and
abuse of power will take place. It is also important to set a time frame for the exercise of this power;
this will help in early disposal of the cases. Judicial review of this power is another issue which is
debatable. The researcher is of the opinion that this power should not be absolute, at the same time
the judiciary should not interfere with his power too much, it should only be done in the case of
arbitrariness and malafide.

The principles of natural justice should be imbibed in the exercise of clemency powers
because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through
procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be set as the
scope will differ from case to case basis.
_________________________________________________________
[i]Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480.
[ii]59 Am Jur 2d, Pardon and Parole at 10.
[iii]P.J. Dhan, “Justiciability of the President’s Pardon Power”, 26 Indian Bar Review 1999, at 69.
[iv]It reads as, “The President…..shall have power to grant reprieves and pardons for offences
against the United States, except in cases of impeachment”.
[v]32 U.S. 150 (1833).
[vi]71 U.S. 333 (1866).
[vii]80 U.S. (13 Wall.) 128, 147 (1871).
[viii]95 U.S. 149 (1877).
[ix]P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71.
[x]Id.
[xi]V.N Shukla
[xii]The Deputy Inspector General of Police, North Range, Waltair and Anr.v. D. Rajaram and Ors,
MANU/AP/0162/1960.
[xiii]S.C. Jain, The Constitution of India-Select Issues and Perceptions 57(Taxmann: New Delhi,
2000).
[xiv]59 Am Jur 2d, Pardon and Parole, 5.
[xv]Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104.
[xvi]The definition that has been given in the Act is,” An act or omission made punishable by law for
the time being in force”.
[xvii]Supra Note Balkrishna at 105.
[xviii]Art. 372, Constitution of India.
[xix]MANU/TN/0394/1954.
[xx]AIR 1981 SC 112. The Supreme Court has, however, created an exception to the above rule in
K.M. Nanavati’s case where it held that the Governor cannot exercise his powers under Article 161
when the matter is sub-judice in the Supreme Court during the time Article 142 is in operation.
[xxi](2001) 5 SCC 714.
[xxii]AIR 1953 SC 325. “the Court in this case observed that in order that the protection of Art 20(2)
be invoked by a citizen there must have been a prosecution and punishment in respect of the same
offence before a Court of law or a tribunal, required by law to decide the matters in controversy
judicially on evidence on oath which it must be authorized by law to administer and not before a
tribunal which entertains a departmental or administrative enquiry. The very wording of the Art.20
would indicate that the proceedings therein contemplated are of nature of criminal proceedings
before a Court of law or a judicial tribunal, in accordance with the procedure prescribed in the statute
which creates the offence and regulates the procedure.”
[xxiii]AIR 1964 SC 375.
[xxiv]R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.
[xxv]Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions: Inadequacies in Practice”,
12 Stud Adv (2000) 72 at 74.
[xxvi] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.
[xxvii]Upendra Baxi, “Clemency, Erudition and Death: The Judicial Discourse in Kehar Singh”,
30 J.I.L.I (1988) 501 at 503.
[xxviii]1987 Cri LJ 1088.
[xxix]Triveniben v. State of Gujarat, (1989) 1 SCC 679.
[xxx]Triveniben v. State of Gujarat, (1989) 1 SCC 679; Sher Singh v. State of Punjab, 1983SCC
(Cri) 461.
[xxxi]Madhu Mehta v. Union  of India, 1989Cri.L.J. 2321.
[xxxii]3 U.S. (3 Dall.) 386 (1798).
[xxxiii]The Court said that a law that makes a man Judge in his own cause…it is against all reason
and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be
presumed that they have done it.
[xxxiv]Brian C. Kalt, “Pardon Me?: The Constitutional Case Against Presidential Self Pardons”,
106 Yale Law Journal 1996 779 at 806.
[xxxv]61 U.S. (20 How.) 264, 266 (1857).
[xxxvi]Subhash C. Jain, “The Constitution of India- Select Issues & Perceptions”, Taxmann
Publications Ltd., New Delhi, 2000) at 59.
[xxxvii]AIR 1980 SC 2147.
[xxxviii](2001) 5 SCC 714.
[xxxix] 1982 (1) BomCR 702
[xl]AIR 1980 SC 2147.
[xli]AIR 1989 SC 653.
[xlii]AIR 1980 SC 2147.
[xliii](1998) 4 SCC 75.
[xliv]Harbans Singh v. State of U.P., AIR 1982 SC 849. Facts: Three persons were convicted of
murder and sentenced to death. One of them was hung as he did not file a special appeal. The one
who filed a special appeal was commuted and his sentence was reduced to life imprisonment. The
third one had appealed to the President for pardon and his appeal was rejected. On the day he was
to be hung he filed a special appeal.
[xlv]Shashidharan And Others v. State Of Karnataka And Others, 2000-(CR1)-GJX -0625 –KAR.
[xlvi]Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.
[xlvii]K. M. Nanavati  v. State of Bombay, AIR 1961 SC 112.