List of Contents
- Updates on Parliament and state Executive
- Are courts encroaching on the powers of the executive?
- Pardoning Powers of Governor
- Aspect of Mercy petition in India and Judicial intervention
- Reasons for frictions between Puducherry CM and LG
- pardoning power of president in india
Updates on Parliament and state Executive
This section will provide you with the updates on the Central Executive and state Executive :
Executive News and updates
Are courts encroaching on the powers of the executive?
Synopsis: The instances of court’s intervening in the executive matters without providing comprehensive legal reasoning are increasing. SC’s recent decision to put stay on farm laws has been analysed in this context.
The Supreme Court is trying to make a political settlement between farmers and the government. It has put a stay on farm law and made a committee for mediation. But the court has not provided any legal or constitutional reasons for that.
What are the contradictions in this decision of SC?
The following reasons suggests that the decision of SC to stay farm laws was a clear encroachment into the domain of executive.
Firstly, the petition was filed on the argument that only states are eligible to enact farm laws under Seventh Schedule to the Constitution. SC should have analysed the validity of such basis.
Secondly, the court is giving the example of the protests during Maratha reservation case in which it had issued a stay on the law in question. But in that case the stay was given on constitutional grounds.
Third, the reason given by the court for its decision was not a legal reason. It provided hat this step will ease the hurt feelings of farmers and it will become easier to bring them on the negotiation table.
Fourth, In the recent years, SC has been hesitant to take up constitutional challenges to similarly politically controversial moves. This decision by SC also falls into the same category. For Example; the cases of Article 370, the Citizenship (Amendment) Act, reservation quotas for economically weaker sections, electoral bonds, and the ‘love jihad’ laws.
Fifth, Earlier SC Held protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution. But in a related case told that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and the decision will be taken by Police.
SC is under question of the critics these days, but the positive roles played by it cannot be ignored due to that. In the Navtej Johar case (Navtej Singh Johar v. Union of India) court acted in a counter-majoritarian manner and decriminalised Homosexuality.
Pardoning Powers of Governor
Why in News?
Tamil Nadu Governor will make a decision on a plea for the release of a prisoner. The prisoner is undergoing life imprisonment for the assassination of former Prime Minister Rajiv Gandhi in 1991.
Pardoning Powers of Governor:
- Article 161: It provides that the Governor shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person. But the person should be convicted of any offense against any law which is under the executive power of the State.
- Governor cannot pardon the death sentence (President has the power to do so)
- The Governor cannot grant pardon, reprieve, respite, suspension, remission, or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.
Different Pardoning Powers of Governor:
- Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
- Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment which in turn may be commuted into simple imprisonment.
- Remission: It implies reducing the period of a sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
- Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special facts such as the physical disability of a convict or the pregnancy of a woman offender.
- Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
Difference Between Pardoning Powers of President and Governor
Aspect of Mercy petition in India and Judicial intervention
Former Punjab CM Beant Singh’s assassin Balwant Singh Rajoana’s mercy petition was accepted by the Home ministry in 2019. But the decision could not be implemented as the Council of Ministers didn’t send the file to the President. Recently the Supreme Court criticised the government for their delay and scheduled a hearing for that.
This created a larger debate on the relevance of mercy petition itself and the pardoning power of Executive in India.
What is a mercy petition?
A mercy petition is filed by a convict to change his/her punishment (especially capital) into a lesser form of punishment. It is also called clemency petition/plea or executive clemency.
Mercy Petition can be exercised after all the legal remedies were exhausted. (Legal remedies include all the remedies available under prevailing law and Constitution).
A petition can be filed with the President (under Article 72 of the Indian Constitution) or the governor (under Article 161 of the Constitution).
This provision of pardoning power or mercy towards convicts was first originated in the United Kingdom. Later the concept made its presence in the United States of America, India, Canada, etc.
What is the procedure to file a mercy petition?
A convict under a death sentence is eligible to make the mercy petition. But it should be filed within seven days, after the dismissal of her/his appeal by the Supreme Court and intimation of the same to the convict by the Superintendent of the Police (SP).
First, A written petition is filed before the President/Governor either by the convict or his/her relative on his/her behalf. The petition can be filed on the following grounds:
- The convicted person is the sole bread earner of their family.
- The physical/mental fitness of the convict or his/her age.
- Law for the crime committed was quite harsh.
- The court committed an error or mistake unknowingly.
The grounds might play an important role in the decision-making process.
Second, the Petition will be forwarded to the Ministry of Home Affairs for comments and recommendations.
Third, the Home Ministry analyses the merits of the Mercy petition. During this phase, the Ministry also discusses the matter with the concerned State government.
- After this, the Home Minister makes the recommendation on Mercy petition to the President.
Fourth, As per the advice of the Council of Ministers (CoM), the President can either accept or reject the mercy plea. There is no time limit prescribed for the President to exercise this power.
The Governor is also empowered with pardoning powers, but the Governor cannot pardon the Death sentence. However, he can commute, remit, reprieve the death sentence for the offences against the law, which is under executive power of the State.
What is the reason to have mercy petition?
First, The option for mercy can result in good conduct by the Convict in the prison. This helps in solving the issue of prison discipline.
Second, Mercy petition adds a human touch to the country’s judicial process. The mercy petition process judges the convict based on humanity and not on legality (concluding judgement based on evidence and witnesses).
Third, Mercy Petition can save an innocent person from being punished due to doubtful conviction or miscarriage of justice. Thus, this process is very significant as it provides an opportunity to correct the errors made during the judicial process.
Fourth, pardoning is provided with the belief that it will serve for better public welfare and for the greater public good.
Challenges with the mercy petitions in India:
First, there is no time limit given in the Constitution for a decision on Mercy Plea. There are many instances when the mercy petitions are kept pending for a long period. This is seen as a violation of Human Rights by legal experts. The convicts face mental, emotional and physiological trauma during the delayed period.
Second, the experts also say, “Mercy petition is dealt largely without mercy by the successive governments”. They point out reasons such as
- President not bound to accept the Mercy Petitions. It is the discretion of President
- The critics also point out the information released by the RTI Act, “There are 77 mercy pleas decided by successive Presidents between 1991 and 2010. Of these 69 were rejected and only 8 were accepted”.
Third, the President is not bound to state the reasons for the rejection of Mercy Petition. It results in a lack of transparency in the process.
Judicial interventions on Mercy petition:
First, In Ranga Billa Case: the court mentions that “nature and ambit of the pardoning power is entirely a discretionary remedy. Providing grant or rejection of petition need not state the reason for the actions.
Second, In the Kehar Singh vs Union of India (1989) case: The court mentions “pardon by the President is an act of grace. Therefore, pardoning cannot be claimed as a matter of right. The power exercisable by the President is exclusively administrative in nature, and it is not justifiable.
Third, In the Dhananjoy Chatterjee (alias Dhana) vs the State of West Bengal (1994) case: The Supreme Court said that “The pardoning power under Articles 72 and 161 can be exercised by the Central and State Governments. The powers shall not be exercised by the President or Governor on their own”.
Fourth, In Mohd. Afzal Guru vs. State of Delhi (2014) case: The court said that “there has to be 14 days gap between the rejection of mercy petition and actual execution of the death penalty”.
Pardoning power of the executive is very significant as it corrects the errors in the judicial process. Timely disposal of mercy petition is a boon. To ensure that the government have to fix the time frame and create certain binding conditions to exercise the Mercy petition. This will facilitate smooth functioning of Indian democracy.
Reasons for frictions between Puducherry CM and LG
Synopsis: Tussle between the Puducherry CM and LG Kiran Bedi is one of the examples of increasing frictions between constitutional functionaries. In today’s article we are listing the causes of frictions between them.
- Recently, Puducherry Chief Minister (CM) V. Narayanasamy staged a three-day protest against Lieutenant Governor (LG) Kiran Bedi.
- The CM accused LG of “functioning in an autocratic manner” and adopting an “obstructionist attitude” in ensuring the progress and welfare of people and asked the Centre for the recall of the Lt Governor.
- Whereas, LG defended herself by stating that the Lt Governor’s secretariat is ensuring just, fair and accessible administration, within the legal limits.
What are the causes of friction between Puducherry LG and CM?
Both have been in friction over issues such as;
- The appointment of the State Election Commissioner, an office critical to holding elections to local bodies in the Union Territory.
- The implementation of direct benefit transfer in the public distribution system using cash, instead of free rice, being given to beneficiaries.
How experts are seeing this issue?
- First, the Assembly elections are likely in April or May. The protest of CM leading the protest against the Lt Governor was seen as an act of political mobilisation.
- Second, experts opine that LG should also take into account the legitimate requirements of an elected government and try to accommodate Mr. Narayanaswamy’s views on important matters such as the free rice scheme.
- Even the Centre itself did not see any benefit in the DBT mode when it decided to give additional food grains (rice or wheat) free of during the COVID-19 pandemic.
Now the responsibility lies with the Centre to step in and restore the breakdown of communication between the Lt Governor and the Chief Minister in the interest of smooth administration.
pardoning power of president in india
Context: Recently, US President Donald Trump exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor
What is the extent of the US President’s power to pardon?
- Constitutional right: The President of the US has the constitutional right to pardon or commute sentences related to federal crimes.
- No restriction: The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
- Discretionary power: Clemency is a broad executive power, and is discretionary. The President is not answerable for his pardons, and does not have to provide a reason for issuing one.
What are the limitations?
- Article II, Section 2 of the US Constitution says all Presidents shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
- The power only applies to federal crimes and not state crimes.
- Those pardoned by the President can still be tried under the laws of individual states.
What is the frequency of usage of pardoning power during different Presidents?
- In 2017, Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was found guilty of being in contempt of court for ignoring a federal judge’s order to stop arresting immigrants solely on the suspicion that they were residing in the US illegally.
- In four years, Trump has granted pardons to 29 people (including Flynn) and 16 commutations.
- President Barack Obama had, during his eight-year tenure, issued 212 pardons and 1,715 commutations.
- The only other President who can be compared with Trump for infrequent use of the power is George H W Bush, who granted 77 clemency requests during his one-term tenure.
- The highest number of clemency grants by a US President (3,796) came during Franklin D Roosevelt’s 12-year tenure, which coincided with World War II.
How Indian President pardons?
- Not discretionary: the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
- Article 72: the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.
- Article 161: the Governor too has pardoning powers, but these do not extend to death sentences.
- Executive power with defined procedure: The President cannot exercise his power of pardon independent of the government. The mercy plea is forwarded to the Home Ministry, seeking the Cabinet’s advice. The Ministry forwards this to the concerned state government based on the reply, it formulates its advice on behalf of the Council of Ministers.
- Final decision making: Article 74(1) empowers President to return cabinet’s advice for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.