Pardoning Power of President: Recent Developments

By Saksham Dwivedi & Prachi Agrawal, CNLU

Editor’s Note: Since the period of Renaissance right to life and liberty has been held as the most basic and foundation of any individual. It is also the source of other rights because without it no other right can exist. Therefore our very constitution recognises it as the fundamental right of every person. However in certain cases it can be curtailed yet the power to pardon which is also referred as mercy petition, is usually reserved for the highest body in state. In our country where president is the highest body representing the citizens this power falls in his domain. Before independence under section 295 of Government of India Act, 1935 Governor General had the prerogative to commute, refute or suspend such sentences. But after independence president has been empowered by article 72(1) and governors by article 161 however the ambit of power in case of governor is narrower than that of presidents. This power is exclusive and has to be used with great caution. Three words have to be focused upon: 1) Offence 2) Punishment 3) Sentence. These three are the prerequisites and only when the justice is not met by execution of such sentence this power has to be exercised. However this position differs in United Kingdom and United States of America. In UK crown enjoys this power but is subjected to advice of ministry. In USA president get this power from Article II Sec. 2(1) and is unlimited in nature except in impeachment suits. Being the executive heads much has been debated upon the nature of this power and whether it can be subjected to judicial review. In the case of Shashidharan And Others v. State Of Karnataka And Others it was held that high court cannot appropriate with the decision of governor in this respect.’


To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to article 21 of the constitution. [1] These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the legislature, the executive and the judiciary are more sensitive to them than to the other attributes of daily existence. [2] The deprivation of personal liberty and the threat of the deprivation of life by the action of the state are in most civilized societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. [3]

 The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the state. In England, the power is regarded as the royal prerogative of pardon exercised by the sovereign, generally through the home secretary. [4] It is a power which is capable of exercise on a variety of grounds, for reasons of state as well as the desire to safeguard against judicial error. It is an act of grace issuing from the sovereign. In the United States, however, after the founding of the republic, a pardon by the president has been regarded not as a private act of grace but as a part of the constitutional scheme.

In an opinion, remarkable for its erudition and clarity, Mr. Justice Holmes, speaking for the court in w.i. Biddle v. Vuco Perovich (71 l ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian republic. It has been reposed by the people through the constitution in the head of the state and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied that the power to pardon rests on the advice tendered by the executive to the president, who subject to the provisions of article 74(1) of the Constitution, must act in accordance with such advice.[5]

The nature and scope of this project has changed drastically after the Court has started to look at the power in a broader manner. Furthermore, the decision in Shatrughan Chauhan’s case has changed the situation drastically. In addition to this there are other issues as well like foreigners applying for a pardon, judicial review of pardon and the guidelines for the exercise of the pardon power. The researcher has made an effort to discuss all these issues to get a complete understanding of the issue.

Power Of President to Grant Pardon in India

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. [6] 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. [7]

 Article 161 is the corresponding provision relating to the mercy jurisdiction of the President, Article 72 says 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.

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. [8] 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. [9]

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. [10] A country would be most imperfect and deficient in political morality without power for clemency.

It is very important to look at three words to understand the correct interpretation of the article. These three words are ‘punishment’, ‘sentence’ and ‘offense’. The first two words show that the pardon by the President will save a person from the consequences of an offense and from punishment as well. The researcher at first would like to look at the word ‘offense’.  The manner in which it is used makes it quite evident that the punishment and sentence we spoke about are in respect of the offense committed. This implies that the punishment which is supposed to be pardoned has to be in respect of an offense and not for any simple breach of a condition. [11]

The reasoning that is given for the above-said statement is derived from the meaning of the word offense as it is given in the General Clauses Act, 1897. [12] 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.

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. [13] 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 [14]; 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 [15] and Ramdeo Chauhan v. State of Assam. [16] 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 offense? 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 offense. To be more precise, the word offense can be used only in the case when the act done falls within the scope of the word offense 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 offense, 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. [17] The same issue was discussed in S.A. Venkataraman v. Union of India; [18] 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 offense. 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. The issue that is important 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 offenses 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. 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.

 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. 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. [19] 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. [20]

 In United States of America, the President derives this power to grant pardon from Art. II, Sec. 2(1). [21] 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 [22] 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 [23]. The Court talking about pardon said that:  A pardon reaches both the punishment prescribed for the offense 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 offense. 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, [24] 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 offense 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. Therefore it means that there can be no legislative control over the pardoning power of the executive.

Different Facets of 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. [25] A quasi-judicial body would impose a duty to act fairly. [26] The Supreme Court has held that the constitutional safeguard enshrined in Article 21 extends to the executive disposal of mercy petitions. [27] 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. [28]

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  [29] 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.

 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 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. [30] 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 inquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. [31]

Moreover, no fixed delay can be considered a fixed period. [32] The court, therefore, cannot prescribe a time limit for disposal even of mercy petitions. 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 the 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, [33] the Supreme Court expressed its view against allowing a person to be self-judge. [34]

 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.” [35] The same principle was followed later in the case of Spencer v. Lapsley  [36]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.

Constitutional Power vis-à-vis Statutory Power

The conflict of Art .72, with another statute, came before the Court in the case of Maru Ram v. Union of India. [37] 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.[38]

 This decision was later affirmed in Ramdeo Chauhan v. State of Assam, [39] 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, [40] 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 the 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 no situation can any legislation place a limitation on the power under Art. 72 and Art. 161.

 Judicial Review of Power to Grant Pardon

 Supreme Court in Maru Ram v. Union of India, [41] 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 executions are guarantors of the valid play power.” In Kehar Singh v. Union of India, [42] 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 [43] case. Looking at these cases, the Court did not actually call for judicial intervention. However, in Swaran Singh v. State of U.P, [44] 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. [45]

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. [46] 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.

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 S. 401 of the Cr.P.C. 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. [47] 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. [48]

 Shatrughan Chauhan Vs. Union Of India: Case Comment

The Petitioner has filed a writ petitions, under Article 32 of the Constitution of India [49], which has been filed either by the convicts, who were awarded death sentence or by their family members or by public-spirited bodies like People’s Union for Democratic Rights (PUDR) based on the rejection of mercy petitions by the Governor and the President of India. In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable.[50]

 The Honorable Supreme Court held that death sentence of a condemned prisoner can be commuted to life imprisonment on the ground of delay on the part of the government in deciding the mercy plea. In a landmark verdict that can come as a relief to many death row convicts. Giving life term to 15 death row inmates, including four aides of forest brigand Veerappan, the apex court also ruled that a death convict suffering from mental insanity and schizophrenia cannot be hanged. It overruled its own verdict in Khalistani terrorist Devinderpal Singh Bhullar’s case in which it had held that delay in deciding mercy plea cannot be a ground for commutation of death sentence. The Court said Death sentence in such cases can be commuted to life imprisonment on the ground of their mental illness.

The judgment may have implications in various cases, including the petitions filed by three death row convicts in the Rajiv Gandhi assassination case who have challenged the President’s rejection of their mercy plea less than three years ago. Framing guidelines on disposal of mercy petitions and execution of death sentence, a bench headed by Chief Justice P. Sathasivam ruled that convicts given death sentence must be informed about the rejection of their mercy pleas and should be given a chance to meet their family members before they are executed. It also held that solitary confinement of a prisoner, including death row convict, is unconstitutional and it should not be allowed in the prisons[51].

The bench gave its verdict on a batch of petitions filed by 15 death row inmates seeking its direction for commutation of their sentence to life term on the grounds of delay in deciding mercy plea and mental illness. It also said that execution of death sentence should be carried out only 14 days after rejection of the mercy plea. The apex court also said that the prison authorities must provide legal aid to prisoners facing death sentence so that they can approach courts for commutation of their sentence on the ground of their illness and delay in deciding mercy plea by the government. Pronouncing its judgment on 13 petitions filed by the 15 convicts whose execution of sentence had been stayed by the apex court, the three-judge bench clarified that its directions be implemented in all cases whether a person has been convicted under IPC or the anti-terror law.

 The issue of communication of rejection of mercy plea assumes importance in view of the controversy surrounding the execution of Parliament attack case convict Mohd Afzal as there was allegation that his family members were not properly communicated about the dismissal of his plea and subsequent hanging. Earlier, a two-judge bench in April 2013 had held that long delay in disposing of mercy pleas by the President or the governor of persons convicted under anti-terror laws or similar statutes cannot be a ground for commutation of death sentence. The April 12, 2013 ruling was pronounced while rejecting Bhullar’s plea for commutation of sentence on ground of delay in deciding his mercy plea. At that time, there were over 20 convicts facing execution. Later on, an apex court bench had granted relief to a condemned prisoner M.N. Das who had sought conversion of his death sentence to life imprisonment on the ground of delay in deciding his mercy petition. Justice Sathasivam, before taking over as CJI, had said that there was a need for “authoritative pronouncements” by a larger bench or a Constitution Bench on issues like mercy pleas to avoid conflicting views by smaller benches.

 The 15 death row inmates on whose pleas the apex court delivered its verdict are sandalwood smuggler Veerappan’s aides and others. The other death row convicts included Suresh, Ramji, Gurmeet Singh, Praveen Kumar, Sonia and her husband Sanjeev, Sundar Singh and Jafar Ali convicted in various cases. While Suresh, Ramji, Gurmeet Singh and Jafar Ali are lodged in prisons in Uttar Pradesh, former Haryana MLA Ralu Ram Punia’s daughter Sonia and her husband Sanjeev are jailed in Haryana. Praveen is in a Karnataka jail and Sundar Singh is an inmate of a prison in Uttaranchal.Sonia and Sanjeev were awarded death penalty for killing eight members of her family, including her parents and three children of her brother in 2001.Gurmeet Singh was convicted for killing 13 of his family members in 1986. Jafar Ali murdered his wife and five daughters. Suresh and Ramji killed five of their relatives.


Recent times have seen the strong re-emergence of the popularity of the death penalty in the public consciousness. A toxic mixture of perceptions about the role of the death penalty as part of our response to terrorism and sexual violence, along with a president who has demonstrated an uncomfortable eagerness to reject mercy petitions, has ensured that the unfairness in the administration of death penalty receives scant attention. However, the judgement delivered on Tuesday by a three-judge bench of the Supreme Court, commuting the death sentence of 15 death row convicts in the Shatrughan Chauhan versus Union of India case, seeks to correct that imbalance. The guidelines issued in the judgement will hopefully prove to be a crucial step towards ensuring that India adopts a more humane process committed to the rule of law until the very end in carrying out death sentences.

After the secret executions of Ajmal Kasab and Afzal Guru, executions of Maganlal Barela in Jabalpur Central Jail along with that of Shivu and Jadeswamy in Belgaum Central Jail were stayed barely a few hours before their scheduled hour of hanging on the grounds that they were not given an opportunity to challenge the rejection of their mercy petitions. In the Shatrughan Chauhan case, the rejection of mercy petitions by the President was challenged on the grounds of undue delay in disposal of their mercy petitions, mental illness, and solitary confinement as supervening grounds.

 The most significant legal determination in the judgement authored by Chief Justice P. Sathasivam in the Shatrughan Chauhan case is that undue delay by the President in rejecting mercy to a death row convict amounts to torture. Further, such inordinate and unexplained delay by the President is sufficient in itself to entitle the convict to a commutation. While the court refused to fix a certain number of years above which undue delay would amount to torture, the time taken by the President in rejecting mercy petitions of the 15 prisoners ranged between 11 years and 1.5 years. The court commuted the death sentences of 13 prisoners on the basis of undue delay while commuting the sentences of Barela and Sundar Singh on grounds of their mental illness. Sathasivam, along with justices Ranjan Gogoi and Shiva Kirti Singh have taken the view that the crime in question is irrelevant while deciding the effects of keeping a death row prisoner waiting for a decision on his or her mercy petition. The suffering that comes with anticipating death on an everyday basis for the judges amounted to torture, which was violative of the right to life under Article 21 of the Constitution.

 Having held that the nature of crime is irrelevant in deciding the impact of delay, the judges proceeded to declare the April 2013 decision of the Supreme Court in the Devender Pal Singh Bhullar case to be characterized by lack of due regard to the law. The holding by a two-judge bench in the Bhullar case was that those sentenced to death under anti-terror laws could not invoke the argument of undue delay to argue for commutation was held to be an incorrect application of an earlier decision of the Supreme Court in the Triveniben case(1988). In declaring Bhullar per incuriam, the Chief Justice has done away with one of the most regressive judgements that the apex court handed down in 2013.

Formatted on 15th March 2019.


  [1] Singh, MP (2009), V N Shukla’s Constitution of India, (32nd ed.). Eastern Book Co. Lucknow, p. 233

[2] Ibid.

[3] Jain, MP (2010), Constitution of India, (44th ed.), LexisNexis Butterworths Wadhwa, Nagpur, p. 254

[4] Ibid. p. 253

[5] Shatrughan Chauhan vs Union of India, [Writ Petition (Criminal) No. 55 of 2013]

[6] P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71.

[7] Seervai, H.M., (2011), Constitutional Law of India, Universal Law Publishings, (7th Ed.) New Delhi, p. 1232


[9] The Deputy Inspector General of Police, North Range, Waltair and Anr. v. D. Rajaram and Ors, MANU/AP/0162/1960.

[10] S.C. Jain, the Constitution of India-Select Issues and Perceptions 57 (Taxmann: New Delhi, 2000).

[11] Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104.

[12] The definition that has been given in the Act is,” An act or omission made punishable by law for the time being in force”.

[13] Art. 372, Constitution of India.

[14] MANU/TN/0394/1954.

[15] AIR 1981 SC 112.

[16]  (2001) 5 SCC 714.

[17] AIR 1953 SC 325.

[18] AIR 1964 SC 375.


[20]P.J. Dhan, “Justifiability of the President’s Pardon Power”, 26 Indian Bar Review 1999, at 69.

It reads as, “The President…..shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment”.

[21]32 U.S. 150 (1833).

[22]71 U.S. 333 (1866).

[23]80 U.S. (13 Wall.) 128, 147 (1871).

[24]R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.

[25]Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions: Inadequacies in Practice”, 12 Stud Adv (2000) 72 at 74.

[26] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

[27]Upendra Baxi, “Clemency, Erudition and Death: The Judicial Discourse in Kehar Singh”, 30 J.I.L.I (1988) 501 at 503.

[28]1987 Cri LJ 1088.

[29]Triveniben v. State of Gujarat, (1989) 1 SCC 679.

[30]Triveniben v. State of Gujarat, (1989) 1 SCC 679; Sher Singh v. State of Punjab, 1983 SCC (Cri) 461.

[31]Madhu Mehta v. Union of India, 1989Cri.L.J. 2321.

[32]3 U.S. (3 Dall.) 386 (1798).

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.

[33]Brian C. Kalt, “Pardon Me?: The Constitutional Case Against Presidential Self Pardons”, 106 Yale Law

Journal 1996 779 at 806.

[34]61 U.S. (20 How.) 264, 266 (1857).

[35]AIR 1980 SC 2147.

[36]Jain, MP (2010), Constitution of India, (44th ed.), LexisNexis Butterworths Wadhwa, Nagpur p. 324

[37](2003) 5 SCC 714.

[38] 1982 (1) Bom CR 702

[39]AIR 1980 SC 2147.

[40]AIR 1989 SC 653.

[41]AIR 1980 SC 2147.

[42](1998) 4 SCC 75.

[43]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.

[44]Shashidharan and Others v. State Of Karnataka And Others, 2000-(CR1)-GJX -0625 –KAR.

[45]Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.

[46]K. M. Nanavati v. State of Bombay, AIR 1961 SC 112.

[47]Supra Note 5, para 2




[51] Ibid

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