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Presidential Pardon – Can it be Subjected to Juduicial Scrutiny

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pardon granted
by lisby1

 

Meaning of Pardon

In narrow view pardon means to excuse somebody for doing something impolite, or to excuse something impolite, but in broader terms it means, to pronounce the official release of somebody who has committed a crime or other wrongdoing from punishment, or the official forgiving of a crime or wrongdoing.

Pardon as a word is derived from old French perdun and pardun, and modern French pardonner which signify in Brittany the feast of the patron saint of a church or chapel, at which an indulgence is granted. Hence the term pardon finds its origin in the meaning as it was used in Brittany.

A pardon is the forgiveness of crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent authority like church. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. Today, pardon is granted in many countries when individuals have demonstrated that they have fulfilled their debts to society, or otherwise deserve, in the opinion of the official, of a pardon. Pardon is some times offered to persons who, it is claimed, have been wrongfully convicted.

Justice Marshal of the American Supreme Court put pardon in Wilson’s case in 1833 as ‘an act of grace, proceeding from the power entrusted with the execution of the laws’.

In 1927 this approach was abandoned and Justice Oliver Holmes, one of the distinguished judges of 20th century said that ‘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.’

Need for the Power of Pardon

Writers on law and political science often put the fundamental question, is there need for prerogative mercy? The law commission of India, in its report on capital punishment, examined this question at great length. In its report it discuses several aspects of prerogative. It was argued that in India where death sentence is not mandatory and court is free to consider the circumstances relevant to the question of sentence, the prerogative of mercy is not needed. The commission noted that there are many matters which may not have been considered by the courts. The hands of the court are tied down by the evidence placed before it. The truth of the matter is that law is made for man. Justice is much more than mere codes and precedents. There are occasions when justice and humanity demands that mercy be shown in the matter of sentence.In the American case of Grossman, the Supreme Court pointed out that executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.

Pardon in Indian context

The Central Executive i.e. the President of India exercises very broad and varied functions. It exercises not only executive functions but also, in a limited way, judicial functions as well. The power of pardon is one such very wide power granted to him.

The Article 72 of the Indian Constitution empowers the President to grant pardon, reprieve, respite or remission of punishment, or to

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