Presidential pardon open to judicial scrutiny: Supreme Court

New Delhi: Remission (reduction of sentence) or pardon granted to life convicts by the president or a governor will be open for judicial review if such mercy is extended to “privileged class deviants” arbitrarily and with mala fide intentions, the Supreme Court has ruled. But exceptional circumstances, such as a convict suffering from an incurable disease at its last stage, may warrant release from prison at a much early stage.

Cautioning the executive against liberally exercising the power of remission or pardon, a bench of chief justice KG Balakrishnan, and justices JM Panchal and BS Chauhan on Tuesday said the exercise of clemency could be a “grand farce” if used as a “facility” and “an incentive to crime”. No convict should be a “favoured recipient” of clemency, the bench said, hastening to add that liberty is one of the most cherished possessions of a human being and she or he would resist forcefully any attempt to diminish it.

The remission and pardon policies of the central and state governments are based on different categories of murder. Explaining the rights of life convicts seeking remission under the government’s short sentencing scheme, the bench said they can make an application and the governor or president could consider their plea even though they may not satisfy the statutory requirement of undergoing the minimum sentence.

It said the mark of being a criminal doesn’t get erased if convicts are granted pardon or the jail term is reduced by the executive.
Examining the modern penal approach, which is correctional and rehabilitative, the bench said the power of pardon is a means of infusing mercy into the justice system. “The power of clemency is required to be pressed into service in an appropriate case.”

The judgment is the fallout of a case of a life convict in Haryana who had served 15 years in jail and wanted release. The high court directed the state to examine the case, but the government said the convict’s plea could not be entertained under its short sentencing policy of 1993 as the man had been convicted earlier.

Rejecting the state’s appeal, the apex court said the convict’s case stands on a different footing as he had served 15 years of sentence and the government must examine whether he was entitled for release given the fact he wasn’t involved in any organised crime.