In this post we are going to discuss the judicial powers of the President. The Constitution of India has vested many judicial powers to the President of India. We will discuss it in detail.
Article 72 of the Indian Constitution confers on the President – the power to grant, pardon, reprieve, respite, remit or commute a punishment of any person convicted of any offense.
1. In court martial.
2. In case of death sentence.
3. Against any law relating to a matter falling under the jurisdiction of the Union.
Pardon : – It means completely absolving an individual of his conviction, sentence or disqualification. Pardon places a person in the same position as if he has never committed the offence, he is an innocent in the eye of law or he had before committing the offence. A pardon granted may be absolute or conditional. It can be granted before, during or office the trial.
Commutation : – It means to substitute a ( toughest ) tougher punishment by a lighter one. E.g. – Regressive imprisonment can be replaced by simple imprisonment.
Remission : – It means reduction of the amount of sentences without changing its character. E.g. – A sentence of one year rigorous imprisonment can be implemented to six months of rigorous imprisonment.
Respite : – Avoid a lesser punishment on some special ground. E.g. – the pregnancy of a woman offender.
Reprieve : – Temporary postponement of the execution of a sentence especially a death sentence.
Executive clemency is an act of grace therefore it can not be demanded on a matter of right. It is purely an executive function.
It is exercised by the President under Article 72 and by the governor under Article 181 on the advice of the respective council of ministers. The power of the President and the governor in this regard as subject to judicial review. The executive clemency has been provided to correct possible judicial error, to provide relief from evident mistake is the operation of the criminal law.
The governor of any Indian state has the power to pardon under Article 161. But this power of the governor is different from the power of the President in two ways : –
1. The governor cannot pardon sentences given by court martial but the President can pardon in this case.
2. The President has the power to pardon death sentences while the governor does not have the power to pardon death sentences.
Note : – Here you may have confusion about what will happen if a state prescribes a death sentence. Your answer to this confusion is – pardoning power in this case lies with the President of India and not with the governor of that particular state.
In Sher Singh Vs State of Punjab 1983, the Supreme Court held that the President and the governor of a state shall dispose of his clemency position expeditiously and in no case later than 3 months from the date of the recent mercy petition.
In Khor Singh Vs Union Of India 1989, the Supreme Court held that while exercising the judicial powers, the executive does not amend, modify or supersede the judicial records.
The judicial record remained in context. The executive merely extends the act of mercy or relief and does not enjoy the right to be heard by the President or the governor. The court also reiterated its earlier decision and held that capital punishment given under IPC is not violation of rights under Article 21.
However the death penalty shall be awarded in the rarest of rare case where the crime has been committed in a heinous manner and pre mediated and the prosecution has established the guilt of the accuse beyond reasonable doubts.
One of the other judicial powers of the President is to appoint the Chief Justice and judges of the Supreme Court and high courts in India.
If the President feels necessary, he can take advice from the Supreme Court on any question of law or fact but the advice given by the Supreme Court is not binding on the President. It means the President may or may not take the advice given by the Supreme Court.
Judicial power of the President is not discretionary power, it is followed on the advice of ministers.