Sofar the position can be summarised as under:-
(i) a person sentenced to life imprisonment has to undergo sentence for the remaining period of his life;
(ii) the provisions of Sections 55 and 57 of the Indian Penal Code do not provide for automatic conversion of sentence of imprisonment for life to 14 years or 20 years;
(iii) The President or the Governor has powers under Articles 72 and 161 of the Constitution of India to grant pardon or remit the sentence; and they are not governed by the Code of Cr. Procedure;
(iv) the Government has power to suspend or remit sentence under Sections 432 and 433 of the Code of Criminal Procedure and this power is restricted by the provisions of Section 433A, Cr. P. C;
(v) sentence undergone during the period of trial has to be set off against the sentence even in the case of life imprisonment as life imprisonment is also imprisonment for a 'term' though indefinite.
Lakkhi And Etc. vs State Of Rajasthan 1996 (2) WLC 613
The duty of a Judge is to award a proper punishment to the guilty and the judicial function culminates in a judgment pronounced in accordance with law. This judicial verdict can be set aside only in an appeal as provided by law. Thereafter the function of the executive commences and it has to give effect to the judicial verdict. The appropriate Government may under Section 432, Cr. P. C. (a) suspend the execution of the sentence or (b) remit the whole or part of the punishment; (c) impose suitable conditions; (d) cancel the suspension or remission if conditions are not fulfilled; and (e) the appropriate Government may by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.
Under Section 433, Cr. P. C. the appropriate Government has the power to commute a sentence without the consent of the person sentenced and this power includes to commute (a) the sentence of death for any other punishment provided by the I.P.C.;(b) a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or; (c) a sentence of rigorous imprisonment for simple imprisonment or fine and (d) a sentence of simple imprisonment for fine.
Section 433A, Cr. P. C. places embargo on the powers of the Government under Sections 432 and 433, Cr. P. C. and this relates to those cases (a) where the sentence is for imprisonment for life for an offence for which death is one of the punishments provided by law; (b) sentence of death imposed on a person has been commuted under Section 433 into one for imprisonment for life. In both these cases, such persons shall not be released unless they have served 14 years' actual imprisonment. This provision came into effect by Act No. 45 of 1978 and has prospective operation. (Lakkhi And Etc. vs State Of Rajasthan 1996 (2) WLC 613) Whether sentence can be suspended by governor when matter is subjudice before Supreme Court ? Supreme Court of India
K.M. Nanavati vs The State Of Bombay on 5 September, 1960 1961 AIR 112
Issue - the question is limited to the exercise by the Governor of his powers underArt. 161of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to supreme Court; and the controversy has narrowed down to whether for the period when supreme Court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period? There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in supreme Court in exercise of what is ordinarily called " mercy jurisdiction ". Such a pardon after the accused person has been convicted by' the Court has the effect of completely absolving him from all Punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the period when Court is in seizin of the case could have been granted by Court itself If in respect of the same period the Governor also has power-to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. Governor had no power to grant the suspension of sentence for the period during which the matter was sub- judice in Supreme Court. The Governor's order suspending the
sentence could only operate until the matter became sub- judice in Court on the filing of the petition for special leave to appeal whereupon this Court being in seisin
of the matter would consider whether 0. XXI, r. 5 should be applied or the petitioner should be exempted from the operation thereof as prayed for. It would then be for Supreme
Court to pass such orders as it thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other order as the
court deemed fit in the circumstances of the case.
On the principle of harmonious construction and- to avoid a possible conflict between the powers given under Art. 161 to the Governor and under Art. 142 to the Supreme Court, both
of which are absolute and unfettered in their respective fields of operation, it must be held that. Art. 161,does not deal with the suspension of sentence during the time
that Art. 142 is in operation and the matter is sub-judice in the Supreme Court. What is remission and suspension ? ‘Suspension’ means a stay of the execution of the sentence or postponement of a judicial sentence while ‘Remission’ means reducing the amount of sentence without changing its character.Remission and suspension are different in their extent and meaning. ‘Remission’ means that the rest of the sentence needs not to be undergone; leaving the order of conviction and the sentence passed by the court untouched i.e. reduction of the amount of sentence without changing its character, for example, a sentence of one year may be remitted to six months. The effect of an order of remission is to entitle the prisoner to his freedom on a certain date. Therefore, once that day arrives, he is entitled to be released, and in the eye of law he is a free man from that moment. If there is any breach of condition of such remission, the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence. Commutation of Sentences-
According to Black's law dictionary“In criminal law, the change of a punishment to one which is less severe as from execution to life imprisonment.” While suspension and remission deal with postponement of sentence and reducing the period of sentence without changing its character, remission deals with substitution of a form of punishment for a less severe one. Can power of pardon be exercised by Top executive alone even without aid and advice of council of ministers? Answer : - They have to act in accordance with the aid or advice of council of ministers not in their independent capacity . Why? President is symbolic, the Central Government is the reality even as the Governor is The formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Art. 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. The President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, Supreme court having authoritatively laid down the law in Shamsher Singh's v. State of Punjab case. Even without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include Art. 161. The Constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government. The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.. Only in these rare cases will the court examine the exercise.
Maru Ram V Union of India , (1981) 1 SCC 107 Sentencing is a judicial function and whatever may be done in matter of executing that sentence in shape of remitting , commuting etc , the executive cannot alter the sentece itself . The power to grant pardon must be excercised intelligibly not arbitrarily . Malafide exercise of pardon will vitiate the order of pardon . "Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favouratism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. . While constitutional power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricious criteria will void the exercise." Further in Maru Ram V Union of India it was held :-
1.s. 433A does not contravene Article 20(1) of the Constitution. Section 433A does not forbid parole (or furlough) or other release within the 14-year span.
2. s. 432 and s. 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and s. 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. 3.Although the remission rules or short-sentencing provisions proprio vigore may not apply as against s. 433A, they will override s. 433A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power.
4.The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to. the whole group. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.. Only in these rare cases will the court examine the exercise.
Three Judge Bench of Supreme Court considered the question of judicial review against an order granting pardon by the Governor under Article 161 of the Constitution in the case of Swaran Singh vs. State of U.P. and Others (1998) 4 Supreme Court Cases 75. In that case an MLA of the State Assembly had been convicted of the offence of murder and within a period of less than two years he succeeded in coming out of the prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. The son of the deceased moved the Allahabad High Court challenging the aforesaid action of the Governor and the same having been dismissed the matter had been brought to Supreme Court by grant of Special Leave Petition. Supreme Court had come to the conclusion that the Governor was not told of certain vital facts concerning the prisoner such as his involvement in five other criminal cases of serious offences, the rejection of his earlier clemency petition and the report of the jail authority that his conduct inside the jail was far from satisfactory and out of two years and five months he was supposed to have been in jail, he was in fact on parole during the substantial part thereof. The Court further held that when the Governor was not posted with material facts the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner and the order fringes on arbitrariness. The Court, therefore, quashed the order of the Governor with a direction to re-consider the petition of the prisoner in the light of the materials which the Governor had no occasion to know earlier.
In the case of Swaran Singh v. State of U.P. [1998 (4) SCC 75] after referring to the judgments in the cases of Maru Ram's case and Kehar Singh's case this Court held as follows:
"we cannot accept the rigid contention of the learned counsel for the third respondent that this court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it." It must be remembered in this context that it was held in State of Haryana v. Mohinder Singh, (2000) 3 SCC 394 that the power of remission cannot be exercised arbitrarily. The decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Cr.P.C. does provide this check on the possible misuse of power by the appropriate Government. Sangeet & Anr vs State Of Haryana on 20 November, 2012
Substantive check on arbitrary remissions
For exercising the power of remission to a life convict, the Cr.P.C. places not only a procedural check as mentioned above, but also a substantive check. This check is through Section 433-A of the Cr.P.C. which provides that when the remission of a sentence is granted in a capital offence, the convict must serve at least fourteen years of imprisonment. Of course, the requirement of a minimum of fourteen years incarceration may perhaps be relaxed in exercising power under Article 72 and Article 161 of the Constitution and Section 433 of the Cr.P.C. Remission can be granted under Section 432 of the Cr.P.C. in the case of a definite term of sentence. The power under this Section is available only for granting “additional” remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of the Cr.P.C. can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
7. Before actually exercising the power of remission under Section 432 of the Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner. In Ashok Kumar v. Union of India, (1991) 3 SCC 498 : (1991 Cri LJ 2483), it was held that a prisoner is not entitled to be released under the remission rules unless his sentence is remitted under Section 432 which is subject to limitation under Section 433A, Cr. P. C. However, it was held that Section 433A restricts exercise of powers under Sections 432 and 433 but these provisions themselves are subject to overriding powers under Articles 72 and 161 of the Constitution . In State of Madhya Pradesh v. Ratan Singh (1976) SCC (Crl) 428 : (1976 Cri LJ 1192), the matter was again clarified and it has been held that as laid down in Godse's case imprisonment for life means sentence for entire life, which does not expire automatically at the end of twenty years including remission, because the rules framed under the various Jail Manuals under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. The appropriate Government has the undoubted discretion to remit or refuse the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner.
In Laxman Naskar V state of west bengal , 2000 SCC (Cri) 1431 Honourable Supreme court listed out considerations with should guide the authority in ordering premature release of an offender , it is to be in accordance with Prison Rules of the state . in this case Prison rules for the State of West Bengal were taken into account , they were :- 1) Whether offence is an individual act of crime without affecting society at large ? 2)Whether there is any chance of future recurrence for committing the crime ? 3) Whether the convict has lost potential for committing the crime ? 4)whethere there is fruitful purpose of confining the convict ? 5) What is socio-economic condition of convicts family ? Since State ignored the rules , Supreme court directed the authorities to reconsider the request for the release of all life convicts who have approached the court and have completed 20 years in prison.
We have yet another authority over commutation of sentence in Mohammad Ishaq V S. Kazam Pasha , 2009 Cri LJ 3063 (SC)Supreme court held that order of commutation passed was without any application of mind and was liable to be set aside due to fact that accused showed utter disregard for rule of law by evasion of arrest and taking unsubstantiated pleas of suffering from multiple ailments which was found to be without merit .
Epuru Sudhakar & Anr vs Govt. Of A.P Writ Petition (crl.) 284-285 of 2005Supreme court held that Governor cannot excercise power to grant pardon arbitrarily and quashed the pardon of governor while upholding the sentence of death of Andhra Pradesh High court .It is fairly well settled that the exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases.
In exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases. Supreme Court has succinctly discussed the issue in the case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh & Others, (2006) 8 SCC 161 that the consideration of religion, cast or political loyalty of a convicted person for the purpose of commutation of his sentence are held to be prohibited grounds. It observed as follows :
"The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant's guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review.
An undue and unjustified exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law". The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future."
In Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622 it was inter-alia held as follows:
"25. This principle was reiterated in Tata Cellular v. Union of India (1994 (6) SCC 651 in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached; or
5. abused its powers. In Sterling Computers Ltd. v. M&N Publications Ltd. ((1993 (1) SCC 445) it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wade's Administrative Law was relied upon: (SCC p. 457, para 17) "The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended." In U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. (1993 (2) SCC 299) observed as under: (SCC pp. 306-07, para 11) "11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by Supreme Court as far back as 1970 in A.K. Kraipak v. Union of India (1969 (2) SCC 262). Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred'. (Lord Diplock in Secy. of State for Education and Science v. Tameside Metropolitan Borough Council 1977 AC 1014 at p.1064.) The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene." (emphasis supplied) To summerize the principles :- The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness . (f) the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration Inevitable conclusion, therefore, is that if it comes to the knowledge of the Government that the pardon has been obtained on the basis of manifest mistake or patent misrepresentation or fraud, the same can be rescinded or cancelled.
Position in USA : Article II of the US Constitution grants the President of the United States, the “Power to Grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.”
The philosophy underlying the pardon power is that "every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy." [See 59 American Jurisprudence 2d, page 5].
The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words [71 L. Ed. 1161 at 1163]:
"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." The position in U.S.A. is summed up in Volume 67A Corpus Juris Secundum, p.21 para 16 as follows:
"There is authority for the view that a pardon may be held void where it appears from the pardon that the pardoning power was misinformed; but there is also authority for the view that intentional falsehood or suppression of truth is necessary, and that misinformation given in good faith and in the belief in its truth is insufficient to avoid a pardon.A pardon procured by false and fraudulent representations or by intentional suppression of the truth is void, even though the person pardoned had no part in perpetrating the fraud."
In "THE CONSTITUTION OF UNITED STATES OF AMERICA" (Analysis and Interpretation) "Pardons and Reprieves" have been stated as follows:
"The Legal Nature of a Pardon In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: "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 case of Burdick v. United States, Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him was proffered by President Wilson "a full and unconditional pardon for all offenses against the United States," which he might have committed or participated in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. "The grace of a pardon," remarked Justice McKenna sententiously, "may be only a pretense ... involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected." Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice. In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. "A pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful. They seem clearly to indicate that by substituting a commutation order for a deed of pardon, a President can always have his way in such matters, provided that substituted penalty is authorised by law and does not in common understanding exceed the original penalty. The Constitution of Greece grants the power of pardon to the President of the Republic (Art. 47, § 1). He can pardon, commute or remit punishment imposed by any court, on the proposal of the Minister of Justice and after receiving the opinion (not the consent necessarily) of the Pardon Committee.
The power to grant pardons and reprieves in the United Kingdom is known as the royal prerogative of mercy. It was traditionally in the absolute power of the monarch to pardon an individual for a crime, whether or not he or she had been convicted, and thereby commute any penalty; the power was then delegated both to the judiciary and the Sovereign’s ministers. Since the creation of legal rights of appeal, the royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government. The Irish constitution states (in Article 13.6) that “The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on otherauthorities”. History of pardoning power:-
Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a Government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy. In England, this power has been exercised from time immemorial, and has always been regarded as a necessary attribute of sovereignty. In the United States, this power is extended to the President by the United States Constitution, and in the various states and territories it is either conferred by constitutional provision or organic act, or provided for by statute, the power usually being conferred upon the governor or upon a board of which the governor is a member. In some instances, however, the governor's power is so limited as to render an arbitrary exercise impossible.
Validity of contract to procure pardon; criminal liability. While the earlier cases uniformly held agreements to secure a pardon, parole, or commutation of sentence illegal irrespective of the services rendered or contemplated, the more recent decisions take the view that such contracts are valid or invalid according to the character of the services contemplated. Although there is some conflict of opinion, contracts entered into to obtain a pardon, parole, or commutation of sentence have generally been upheld where the services contemplated are not other than the proper presentation of the case before the pardoning power.
Reprieve A reprieve, from the French word "reprendre," to take back, is the withdrawing of a sentence for an interval of time, whereby the execution is suspended. It is merely the postponement of the execution of a sentence for a definite time, or to a day certain. It does not and cannot defeat the ultimate execution of the judgment of the court, but merely delays it temporarily. Reprieves at common law are of three kinds:
1. ex mandato regis, from the mere pleasure of the Crown;
2. ex arbitrio judicis, the power to grant which belongs of common right to every tribunal which is invested with authority to award execution; and
3. ex necessitate legis, required by law to be granted under certain circumstances, as when a woman convicted of a capital offence alleges pregnancy of a quick child in delay of execution, or when a prisoner has become insane between the time of sentence and the time fixed for execution.
In Sir William Wades' Administrative Law (Ninth Edition) the position relating to pardon is stated as follows:
"The royal prerogative The prerogative powers of the Crown have traditionally been said to confer discretion which no court can question; and there was long a dearth of authority to the contrary. But it may be that this was because the decided cases involved discretions which are, as has been laid down in the House of Lords, inherently unsuitable for judicial review, 'such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others'. But at the same time the House of Lords held that the court could review a ministers action (forbidding trade union membership by certain civil servants) under authority delegated to him by prerogative Order in Council, so that the principles of natural justice would apply. Administrative action was held to be reviewable in proceedings against the responsible minister without distinction as to the origin of the power, whether statute or common law. In later cases it was held that the dismissal of a civil servant involved 'a sufficient public law element' to be subject to Judicial review and that an unfair compensation award by the civil service appeal board should be quashed. So now it may be said that the royal prerogative does not per se confer unreviewable discretion, but that many of the powers contained in it will be of a kind with which the courts will not concern themselves. It may be the prerogative acts of the Crown itself, though taken on the advice of ministers are immune from review, whereas the action of ministers, though authorised by delegation of prerogative power, is reviewable.But this is an artificial distinction, and if the case were strong enough even an Order in Council might prove to be reviewable in a declaratory judgment.
These propositions are founded on the wide definition of prerogative which has been criticized earlier. The making of treaties, for example, has no effect on the law of this country, so that there is no exercise of power which can concern the courts. It might be called prerogative without power, while the employment of civil servants might be called power without prerogative. A case where there may be neither prerogative nor power is the grant and refusal of passports, which has been claimed to be wholly within the prerogative and discretion of the Crown. A passport is merely an administrative device, the grant or cancellation of which probably involves no direct legal consequences, since there appears to be no justification for supposing that, in law as opposed to administrative practice, a Citizen's right to leave or enter the country is dependent upon the possession of a passport. The arbitrary power claimed by the Crown has now been made subject to judicial review along with various other non-legal powers discussed later. Other countries were ahead of Britain in protecting this necessary civil right.
At least it is now judicially recognised that prerogative power is as capable of abuse as is any other power, and that the law can sometimes find means of controlling it. The prerogative has many times been restricted both by judicial decision and by statute. It is for the court to determine the legal limits of the prerogative, and they may include the same requirement of reasonable and proper exercise as applies to statutory powers though with this difference, that it cannot be based upon the presumed intention of Parliament. In one unusual case, where a Parliamentary basis could be found because action taken by a minister under a treaty was held to be impliedly prohibited by a statute," Lord Denning MR discussed the nature of the prerogative and said:
Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive.
Then after citing cases of abuse of statutory power he concluded:
"Likewise it seems to me that when discretionary powers are entrusted to the executive by the prerogative in pursuance of the treaty-making power the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly."
Although this last remark was said in the House of Lords to be 'far too wide', in today's atmosphere it seems clear that the court would entertain a complaint that, for example, a royal pardon had been obtained by fraud or granted by mistake or for improper reasons. The High Court has gone so far as to review a decision of the Home Secretary not to recommend a posthumous free pardon for a youth hanged for murder forty years previously, on the ground that he considered only an unconditional pardon and failed to take account of other possibilities. Although the court made no order or declaration and merely invited the Home Secretary to look at the matter again, it clearly took a long step towards judicial review of the prerogative of mercy. For example it was clear that the Home Secretary had refused to pardon someone solely on the ground of their sex, race or religion, the courts would be expected to interfere and our judgment would be entitled to do so. In New Zealand the Court of Appeal has held that the prerogative power of pardon is not reviewable 'at any rate at present', but that the position might change justice so required; that the prerogative character of the power did not exempt it from review; but that the existing legal and administrative safeguards were adequate so that an extension of judicial review was unnecessary.
A further question is whether the law should concern itself with the Crown's exercise of the ordinary powers and liberties which all persons possess, as in the making of contracts and the conveyance of land. It has hitherto been assumed that in this area the Crown has the same free discretion as has any other person. But where such powers are exercised for governmental purposes it is arguable that the courts should be prepared to intervene, as a matter of public ethics, as a safeguard against abuse. They do not allow local authorities to act arbitrarily or vindictively in evicting tenants, letting sports grounds or placing advertisements, for example. Those are technically statutory powers (since all local authorities are statutory), but they correspond to ordinary powers and liberties. If, as the House of Lords holds, the source of power is irrelevant, it would not seem impossible for judicial review to be extended to this 'third source' of public power which is neither statutory nor prerogative but is a remnant from the days of personal government. But the 'grotesquely undemocratic idea that public authorities have a private capacity is deeply embedded in our legal culture', and such judicial authority as there is, is not encouraging.