Constitution of India: Mercy Pleas, Clemency Powers and Their Judicial Review in India

The Indian Constitution grants clemency powers to the President and the Governors of States, respectively through Articles 72 and 161 of the Constitution of India, respectively. The purpose was to add a humane approach by means of a reprieve or mercy. Forgiveness, as we all know, is considered to be divine. In matters pertaining to public welfare, it becomes necessary to see whether granting pardon overturns the intention of the conviction.

The Constitution of India permits any convict who is sentenced to death to appeal for mercy. However, the President and the Governors are not obliged to accept every mercy plea. They are supposed to take their decisions on the basis of the advice given by the cabinet.

Constitution of India: Scope of Clemency Powers and Their Judicial Review

According to the Constitution of India, the President and the Governors of State are bound to act on the advice of the Union council of ministers while deciding on mercy petitions. The exercise of these powers can be granted under Articles 72 and 161, but they are subject to judicial review. However, the scope of this judicial review is limited to examining whether the clemency powers have been used with reasonable application of mind or on the basis of extraneous or malafide consideration.

When a decision is made on application of mind, the court will take no action over it but if the pardon appears to be based on malafide or extraneous considerations, it can set aside the decision of the President or the Governor.

A clear instance of this principle was evident in a court judgment that set aside the decision of Andhra Pradesh Governor, Sushil Kumar Shinde to remit the sentence of a Congress activist. Gouru Venkata Reddy. Reddy was undergoing a ten-year prison sentence for killing two persons including a TDP activist.

Constitution of India: Identifying Extraneous and Malafide Consideration

The Constitution of India mandates that the rule of law is essential for all considerations. When the President of Governor, considers the mercy petition or clemency petition on the basis of caste, religion or political loyalty, it becomes a case of extraneous consideration. The President and the Governors can also exercise their power to pardon on the ground that they do not feel justice was done or the sentence passed by the court is too harsh.