The Power to Pardon

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

The sovereign’s right to pardon an offender has always gone together with the concept of sovereignty and hand in hand with the sovereign’s power to punish. Before the Magna Carta the King ruled England through the Divine Right of Kings and all the powers of the State were centralised in him. The signing of the Magna Carta at Runnymede did not bring democracy to Britain, but it did lay down the principle that there is a limit to the sovereign’s power and that the feudatory aristocracy had both a share in power and could call the King to account. The importance of the Magna Carta is that from this small beginning ultimately grew the magnificent tree of parliamentary democracy in which sovereignty meant the right to reign but the authority to govern passed to be people through their representatives. It also foreshadowed the concept of separation of powers between the Executive, the Legislature and the Judiciary. Now the King’s justice fell within the domain of judges who, though appointed by the King, were independent, administered the law impartially and were not accountable to the Executive in any way. In India the separation of powers is given in the Constitution itself and the power to judge an offender, to hold him guilty or otherwise and to award punishment on conviction vests only in the judge. The sovereign, as personified by the ruler or, in the case of a republic, by the President, no longer personally punishes an offender because that power does not vest in him. Unfortunately even after such separation there is really no finality of a judicial order in a criminal case because even today the power to pardon, remit or commute or suspend the sentence given by a court vests in the Executive as personified by the President or the Governor. This anachronistic practice in which the Executive is virtually able to nullify a judicial order in a criminal case dates back to a period when the King was an absolute ruler. Can such a practice be carried over into a democratic polity?

Article 72 of the Constitution gives the power to the President to grant pardon, reprieve, respite or remission of punishment and to suspend, remit or commute the sentence of any person convicted of an offence in (1) a case tried by court martial (2) a case relating to a law to which the executive power of the Union extends. (3) the sentence awarded is of death. Under Article 161 the Governor enjoys similar and concurrent powers in all matters pertaining to a law to which the executive power of the State extends, or a case in which the death sentence has been awarded. In exercising powers under Articles 72 and 161 the President or the Governor, as the case may be, does not act according to his own discretion. Under Article 74 of the Constitution the President is required to exercise his functions and act in furtherance thereof on the aid and advice of the Council of Ministers. This applies mutatis mutandis under Article 163 to the Governor of a State. In deciding a matter of pardon, etc., under Article 72 and 161 the President or the Governor will mandatorily act according to the advice so rendered and this means that the exercise of powers under Article 72 and 161 will be coloured by political considerations and not necessarily be based on merit.

Sections 432 to 435 Cr.P.C. give the power to pardon, etc., to the appropriate government, Union Government in the case of a law to which the executive power of the Union extends and the State Government in the case of a law to which the executive power of the State extends. As per the Rules of Business of the Executive Government framed under Article 77 and 166 of the Constitution, all orders are to be issued in the name and on behalf of the President or the Governor as the case may be and here, too, the decision to pardon, reprieve, remit or commute a sentence would not necessarily be based on the merits of the case but rather on its politics.

Let us try and understand the process by which a person is held guilty, convicted and then sentenced. The report of the commission of a cognisable offence is required to be reduced to writing under section 154 Cr.P.C. by the officer incharge of a police station or an authorised police officer, with such report being entered in a book to be kept for this purpose as prescribed by the State Government. Such information is called the First Information Report (FIR). The police officer in a police station has no alternative but to register every complaint or report because the law gives him no other option. Thereafter under section 156 the police acquires the power to investigate a cognisable case. Section 157 Cr.P.C gives the procedure for investigation. Under section 157 (1) (b) the officer incharge of a police station, if he is convinced that there is no sufficient ground for entering into an investigation may, after recording the reasons in writing, decide not to proceed with investigation. Other than such a contingency the police is required by law to proceed with investigation and for that Chapter XII Cr.P.C. gives adequate powers to the police. Ultimately under sections 170 and 173 Cr.P.C the police is required to submit either a challan before a Magistrate if prima facie the case is established against an accused person or persons or, if no such case is made out, then to file a final report before the Magistrate concerned and seek permission to close the case.

What this means is that the proceedings prior to the trial fall within the domain of the Executive, which operates through the police or any other investigating agency created by law. For example, forest officials under the Forest Act have the power to investigate an offence relating to the forest or wildlife and can themselves prosecute the case before a court having jurisdiction. However, once the challan is submitted chapters XIV, XVI, XVII, XVIII, XIX, XX, XXI, XXI (A), XXII and XXIII and XXIV Cr.P.C. apply and the matter passes into the domain of the judiciary. All these chapters together with Chapters XXV, XXVI, XXVII and XXVIII lay down a very elaborate procedure of trial, recording of evidence and arrival at a judgement about innocence or guilt, followed by conviction and sentencing. All evidence is recorded strictly in accordance with the provisions of the Indian Evidence Act, which is very well and tightly structured and enables the court to filter out all evidence which is irrelevant, hearsay or lacking in credibility. The matter does not end here because every death sentence given by a Court of Session has to be submitted for confirmation to the High Court having jurisdiction. There are elaborate provisions for appeal, revision and review and where there is a sentence of death the High Court can certify that the case is fit for leave to appeal to the Supreme Court.

Under Indian law, which follows Anglo Saxon Jurisprudence, a person is deemed to be innocent till proved guilty. The burden of proof, that is, proving beyond the shadow of a doubt that an accused person has committed the offence of which he is charged, rests on the prosecution. The accused does not have to prove his innocence. Under Article 20 (3) a person accused of an offence cannot be compelled to be a witness against himself, which means that constitutionally a court is debarred from drawing any adverse inference against an accused person because he refuses to subject himself to the rigours of examination as a witness. So far as the death sentence is concerned the Supreme Court has on several occasions stated that it must be awarded in the rarest of rare cases, which is why trial courts are very reluctant to sentence a person to death.

The entire judicial process is weighted heavily in favour of the accused. The plethora of judicial filters through which the trial passes, including the right of appeal, is such that, provided the court has strictly followed what is stated in the Indian Evidence Act, it is virtually impossible to wrongfully convict a person of an offence that he did not commit. Let us take the cases of two persons who committed heinous offences in which many innocent lives were lost. The first relates to Afzal Guru who masterminded an attack on Parliament which, though not successful in killing a large number of parliamentarians still led to the murder of nine innocent people, including five policemen and the killing of five terrorists by the security forces in defence of parliament. The case was investigated by the police, which was able to establish a virtually irrefutable prima facie case against Afzal Guru. The matter was tried by the Court of Sessions, which held Afzal Guru guilty and sentenced him to death. The death sentence was confirmed by the High Court, which also rejected Afzal Guru’s appeal. The Supreme Court, in rejecting the appeal of Afzal Guru, gave a concurrent finding with the order of the Court of Session and the High Court. Three courts in ascending order unanimously held Afzal Guru guilty of the offence as charged and upheld his death sentence. Despite this Afzal Guru moved a petition for commutation of the sentence to life imprisonment and the Government of India sat on it for almost eight years. Where is the justification for this? One could guess what went on in the mind of government. Afzal Guru hailed from Kashmir and government did not want to alienate any element of Kashmiri society, including separatists and militants, by executing Afzal Guru. At the same time had government commuted his sentence there would have been a national uproar and this, too, government did not want to risk. Perhaps it was felt that if one just kept the matter pending long enough the outrage would subside and people would forget. Could or should the family of the five slain policemen either forget or forgive? What is more, by not executing a person who had attacked the very base of our democratic polity, the Parliament, what sort of message was government sending to other would be terrorists and militants? Obviously the message would be that you can do anything you like in India and we shall not exact from you the ultimate price for your crime. Partly, of course, there was also the consideration that the accused was a Muslim and the party in power is trying to woo Muslim votes. This is the supreme insult that the government could inflict on the Muslims because it was virtually stated that government was sparing a terrorist who happened to be Muslim and this should please the Muslims because they in any case supported terrorism by Muslim. The fact is that no Muslim likes terrorism in India and the Indian Muslim is like every other Indian, loyal to his country, desirous of law and order and eager to participate in and share the fruits of development.

The other case is of Ajmal Kasab who, together with his companions, killed more than 166 people in Bombay in 2008. He was tried, convicted and given all the opportunities of appeal as available to any other citizen, despite the fact that he was a Pakistani. It took three years for the sentence against him being executed and it became possible only because he was not an Indian and the government felt that hanging him would not have any adverse implications. His case for commutation also went to the President and had circumstances been different, who knows this mass murderer might also have been spared. I have given these two cases because it was politics which was the determinant of whether or not the judicial order was to be implemented. In the case of Afzal Guru had government not feared a massive Hindu backlash he might still have been pardoned. Thus politics would have determined whether a judicial decision would be final or not.

When the Executive exercises authority to pardon, etc., a convicted criminal it does so on the basis of what? There is no procedure laid down whereby the Executive can weigh up the decision of the Judiciary and then decide whether to give a pardon, commute or remit a sentence, suspend a sentence or otherwise decide in favour of the convict. The judgement of the court or courts could be nullified by executive order because that is what virtually happens when powers under Articles 72 and 161 of the Constitution or sections 432 to 435 Cr.P.C. are exercised by the Executive. This means that the executive decision can be arbitrary, obtained through corruption or decided by the whimsy of wayward politicians or civil servants. This is not the scheme of our Constitution and it militates against the very principle of governance in a society of laws. Even in recent cases we have seen how at different times the Home Minister argued that delay takes place because cases have to be dealt with seriatim and cases required detailed examination. Then when Ajmal Kasab jumped the queue government offered some weak excuses and in the case of Afzal Guru the government did not have a leg to stand on because there were other cases older than that of Afzal Guru pending a decision on clemency. In other words, government by its own actions proved that it is arbitrary. How can there be arbitrariness in a democratic polity and in a society of laws?

My own view is that in order to go strictly according to the separation of power and to strengthen such separation Articles 72 and 161 of the Constitution should be done away with. Similarly sections 432 to 435 Cr.P.C should be modified so that whereas the general power to remit, reprieve. commute, stay, etc., a sentence should be done away with, a person awaiting execution of a death sentence or undergoing life imprisonment in which the term of imprisonment is the entire life and not a shorter period of fourteen or twenty years, may be allowed one petition in his lifetime, which may go before an Authority which will not be subject to the Executive. The composition of this Authority could be as under:

1. In all matters in which imprisonment for life or death sentence have been awarded under a law which comes within the purview of the executive power of the Union, the Authority should consist of a sitting judge of the Supreme Court nominated by the Chief Justice of India, the Chief Justice of the High Court in whose jurisdiction the trial and conviction took place, a judge of another High Court nominated by the Chief Justice of India, the Chairman of the National Human Rights Commission or a member nominated by him, the Attorney General and the Chairman of the Supreme Court Bar Council.
2. Where the sentence has been awarded under a law to which the executive power of the State extends the Authority may consist of the Chief Justice of the High Court under whose jurisdiction the trial took place, a Judge of another High Court nominated by the Chief Justice of that High Court on invitation by the Chief Justice of High Court having jurisdiction, the Chairman of the State Human Rights Commission or a member nominated by him, the Advocate General of the State and the Chairman of the State Bar Council.Without sitting in judgment over the decision of the court or courts concerned, the Authority may recommend whether considering the special circumstances of the convict, his background, his family situation or any other good cause to be recorded in writing, the death sentence may be commuted to life imprisonment or the full lifetime clause of the life imprisonment be reduced to twenty years or fourteen years. The advice of the Authority would be binding on the President or the Governor, as the case may be. No other power of remission, reprieve, suspension, commutation or pardon should be vested in the President, in the Governor or the appropriate government. The only exception to this would be where on account of a treaty obligation or in the course of international negotiations the Government of India and a foreign government reach an agreement about a prisoner in a case where there are international ramifications. In such cases the matter may be placed before Parliament in which the two Houses, by resolution, may permit government to go ahead with what has been agreed to during international negotiations. Here the sovereign power of the State may be exercised, but totally hedged in either by the recommendation of an Authority which is virtually judicial by nature or a resolution of Parliament. Other than this the Executive should have no power whatsoever to nullify through a pardon, etc., the judgment and sentence of a court of law.

Constitutionalism Versus Adventurism

Dr M N Buch 

(Visiting Fellow, VIF)

The Constitution of India, despite the amendments which have been introduced from time to time, has a high degree of immutability, partly because its basic structure is sound, partly because it establishes a balance between public good and the constituent organs of the State, the Executive, the Legislature and the Judiciary, partly because amendment of the Constitution cannot be done whimsically because both Houses of Parliament have a role to play and this provides a check against arbitrariness and partly because there are certain inbuilt constitutional structures and organisations which in a way stand outside the normal executive, legislative or judicial structures, but which nevertheless give an independent voice and opinion to issues of national importance concerning governance. The immutability of the Constitution also rests on the Preamble which has been amended only once on 3.1.1977 and that, too, for the better. The immutability of the Constitution is further strengthened by Part III which contains the Fundamental Rights and, according to me, equally importantly through Part IV which contains the Directive Principles of State Policy, which has increasingly been used by the Supreme Court to remind the State from time to time of its basic duties towards the citizens.

An immutable constitution is not a static constitution and this has been reinforced by some fairly sensible amendments which pushed the frontiers of fundamental rights, fine-tuned and enhanced the meaning of words such as justice and equality by conferring on the underprivileged and the voiceless a whole set of rights and by the proactive role of the Supreme Court, the Comptroller and Auditor General and the Election Commission. In many ways these institutions, through interpretation, pronouncement, by public reporting have furthered the cause of constitutionalism beyond the mere letter of the law and have reinforced and strengthened the basic structure of the Constitution. I do not comment at length in this paper on the Supreme Court and High Courts which are part of the judicial components of the Indian State, except to state that through its pronouncements the Supreme Court has given a new meaning to Article 141 which says that a law declared by the Supreme Court is binding. Article 141 does not confer the power to legislate on the Supreme Court, but by interpretation of law the Supreme Court has given a whole series of judgments which to an extent do create a new legal environment, if not a new enactment. Instead, I would like to comment on four different constitutional authorities which are creatures of the Constitution and have a vital role to play in constitutionalism.

In this context the word ‘constitution’ is narrowly constructed by me as per one of the definitions given in the Twenty-first Century Chambers Dictionary, which reads, “Constitution:- the supreme laws and rights upon which the country or state is founded, especially when it is seen as embodying the rights of its people”. The four authorities to whom I refer are the Attorney General of India appointed under Article 76, together with the Advocate General of each State appointed under Article 165, the Comptroller and Auditor General of India as appointed under Article 148, the Union Public Service Commission and the State Public Service Commission appointed under Article 315 and the Election Commission of India appointed under 324 of the Constitution. Whereas there are a number of commissions, such as the National Human Rights Commission and tribunals such as the Central Administrative Tribunal, which are created under the relevant provisions of the Constitution, they are not an integral part of the Constitution and are, therefore, the creatures of law. In a way they come one step below the organs of the State which are an integral part of the Constitution itself.

Let us begin with the Attorney General of India and in this I shall include, mutatis mutandis, the Advocate General of each State, both officers being responsible for giving advice on legal matters to the Government of India and the Government of a State as the case may be. Though the Attorney General holds office during the pleasure of the President and is appointed by the President on the advice of his Council of Ministers, he is expected to be nonpartisan in the rendering of legal advice and performing the legal duties assigned to him. It is for this reason that the Attorney General has the right of audience in all courts in India and, under Article 88, has the right to speak or otherwise participate in the proceedings of either House of Parliament or any committee of Parliament. The legal advice given by the Attorney General and the Advocate Generals has to be based directly on law and the constitutional implications of the issue on which advice is required to be rendered and, therefore, such advice has to transcend the narrow confines of politics. We have had great Attorney Generals in the past who have fulfilled this role admirably and we have had a few whose conduct has been suspicious and whose advice has been tainted by politics. Constitutionalism requires the Attorney General and the Advocate General to be completely free of such bias and to the extent that he performs his duties according to the Constitution, the Attorney General, standing outside the three organs of the State, still performs the vital function of protecting the interests of the people of India by advising the State to act according to the Constitution.

In a parliamentary democracy or, for that matter, in the American pattern of democracy, one of the functions of the Legislature which cannot be tampered with by any one is its control over public funds. Britain was pushed towards a constitutional monarchy by the fact that the purse strings are controlled by Parliament and without parliamentary sanction the Crown cannot spend even a penny from the exchequer. This role of Parliament and of the State Legislature is enshrined in the Constitution in Articles 112, 113, 114,115 and 116 in the case of the Union and Article 202, 203,204,205 and 206 in the case of the States. It is Parliament and the State Legislature which alone can permit withdrawal of funds from the Consolidated Fund of India and that of the State concerned, which means that without the approval of the annual financial statement of receipts and expenditure, the assent of the Legislature to a demand for grants, enactment of the Appropriation Bill, sanction of supplementary, additional or excess grants or a vote of account on exceptional grants, government may not spend anything from the Consolidated Fund. In order to ensure that government is functioning strictly in accordance with what has been sanctioned for it by the Legislatures. Parliament and the State Legislatures through discussions, deliberations of committees such as the Public Accounts Committee and the Estimates Committee and other procedures which have been adopted from time to time, call government to account, which acts as a very healthy check on the executive. It is to help Parliament and State Legislatures to fulfill this role that the Constitution provides for the Comptroller and Auditor General with wide ranging authority. The CAG, constitutionally, determines the manner and form in which the accounts of the Union and of the States will be maintained, he has overriding powers to audit all expenditure directly from the Consolidated Fund or indirectly on the basis of grants, etc., and he has the constitutional authority under Article 151 to present his audit report to the President or the Governor as the case may be, who will then cause such report to be laid before Parliament or the State Legislature. In a way the CAG is the chief police authority and investigating agency in all matters relating to public revenues and expenditure and to that extent, whilst standing outside the Legislature, he still is the public instrument to help the Legislature in determining whether government has acted strictly according to the approved budget. By doing his duty CAG adds to constitutionality because he forces the Executive to render accounts and to face the consequences for wrongdoing. Public funds are involved in all state expenditure and this constitutional authority helps to ensure that the funds are spent wisely.

Articles 53 and 154 vest the Executive power of the Union and the States in the President and the Governors respectively and such powers are to be exercised by officers subordinate to the President or the Governor. Because the Preamble mandates justice and equality and Article 14 further mandates equality before law, the officers who help the President or Governor in exercising his powers have to ensure that whereas the aid and advice given to the President or Governor by the Council of Ministers may be and will be based on the political agenda of the party in power, the decisions taken thereon will be implemented totally impartially and without any form of political bias. For this we need independent Civil Services and, therefore, we have Chapter 1 of Part XIV of the Constitution. That recruitment to the Services should also be impartial and based on merit, under Chapter 2 of Part XIV there is a constitutional provision for setting up Public Service Commissions for the Union and the States. Whereas UPSC members are appointed by the President and State PSC members by the Governor under Article 316, in the matter of removal of the Chairman or a member of any Public Service Commission, Union or State, this can only be done by an order of the President and that, too, after an enquiry by the Supreme Court conducted as per provisions of Article 145 of the Constitution. Further, to ensure that members of Public Service Commissions remain independent and are not amenable to government pressure, under Article 319 a member of a Public Service Commission who ceases to hold office is not eligible for any further employment under the Government of India or of a State. The idea is to immunise the Services from undue blandishment right from the time of recruitment up to the time of retirement by giving independent Public Service Commissions the key role in this behalf. This is another example of constitutionalism in India.

In a democracy it is through elections that one constitutes the Legislature which, in turn, causes the government to be formed. In this behalf we have Part XV of the Constitution which governs elections and provides for an Election Commission which has superintendence, direction and control over elections to Parliament and State Legislatures. The Commission enjoys sweeping powers in this behalf, partly under the Constitution, partly under the Representation Of the People Act, but very largely through the manner in which successive Chief Election Commissioners have enhanced their own role in conducting free and fair elections and bring the entire machinery of the State under the control of the Commission for the duration of the election process. Whatever else works in India or not, certainly the Election Commission of India has won universal recognition and admiration for the manner in which democratic elections are conducted in this country. The apex of constitutionalism, therefore, can rightly be considered to lie in the Election Commission.

This paper is not only on constitutionalism but it is also on political adventurism. In this behalf, unfortunately, the Congress Party has played a most unwanted role in that whenever any of the constitutional authorities have been inconvenient to it the party has tried to bring about constitutional amendment which could curb constitutionalism. Of this the Forty-Second Amendment of the Constitution was the most notorious because through it Parliament tried to give a special status to the Prime Minister in matters of election, it tried to reduce the role of the Supreme Court, it tried to restrict the powers of superintendence of the High Courts under Article 227, it tried to constitute tribunals under Part XIV –A which would not be under the High Courts and it used Emergency provisions under Part XVIII in a manner redolent of wanting to impose authoritarianism on India. Fortunately the Forty-Second Amendment was negated by the Forty-Fourth Amendment of the Constitution, but on the horizon could be seen the danger of political adventurism. It is here that the Supreme Court, in the Keshwanand Bharti case, defining what constitutes the basic features of the Constitution, ruled what lay outside the purview of Parliament in the matter of amendment of the Constitution and laid down the vital legal principle that the amending powers of Parliament did have limitations and Parliament could not, therefore, negate what was provided by the Constitution as a part of its basic structure. The present Comptroller and Auditor General, by his own interpretation of his role, has also enhanced constitutionalism, though there is a political move to reduce the role of CAG, first by trying to set up a multi-member audit organisation and then by trying to see how legally CAG’s independence can be curbed. One sincerely hopes that these efforts come to naught because in the present state of political flux India needs constitutional activism of its constitutional authorities. In particular, Parliament must also realise that in India it is the people, collectively, as represented by constitutional authorities and institutions, who are sovereign and that the organs of the State are restricted to the role assigned to them the people. This would be the most effective curb on political adventurism of the 1975 mould, as now articulated by a junior minister in the Prime Minister’s Office.