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.