As with all presidents who demit office, Pranab Mukherjee’s record on exercising his powers to pardon has been the subject of some discussion in recent opinion columns.

An opinion piece in the Caravan calls for more transparency from the President while exercising the power to pardon, while another piece in the Times of India argues that since there is an appeal process till the Supreme Court, there is no need for a system of presidential pardons. According to this piece, “mercy petitions in principle” are “an anachronism that has no place in the Constitution of a democratic republic” and are also “anathema in a Constitution built on separation of powers and the rule of law”. It says that the power to pardon was apparently incorporated into the Indian Constitution only because the “mai-baap sarkar that soon took root [after independence] seamlessly transplanted the provision into the Constitution”.

Both these assertions require closer examination.

Justification for pardoning powers

First, the power to pardon was inserted into the Constitution not by a “mai-baap sarkar” but by a Constituent Assembly that consisted of elected representatives in the era before political parties became family fiefdoms. This power, vested in Articles 72 and 161 of the Constitution, allows the President of India or governors of the states to pardon all kinds of crimes and convictions and not just death sentences. The pardon can be either a reduction or a complete remission in sentence.

On the issue of whether the power to pardon is an anachronism, virtually every modern country allows for institutions other than the judiciary to pardon people convicted of crimes. The United States, France, South Africa and Israel, all of which are constitutional republics, like India, allow for their Presidents to pardon people convicted of any crime. It would be a mistake to presume that the power to pardon is a relic of monarchies that drew their legitimacy from the divine.

There are plenty of good reasons for India’s head of state to retain the power to pardon. The first and foremost reason is that the judiciary, like any other institution, is not infallible. Judges can make mistakes and the Constitution has to have a safety valve that allows for injustice to be remedied.

The second reason is that there will always be hard cases where although a person has been rightly convicted, the punishment appears to be disproportionate or there are extenuating circumstances that justify lowering the sentence. Take for example the Chelsea Manning case in the US. In 2013, a military court sentenced Manning to 35 years in jail for leaking secret government documents. In January, a few days before the end of his term as president, Barack Obama commuted the sentence to set Manning free.

The third and perhaps more compelling reason is that there comes a time in the life of every nation when crimes and convictions have to be ignored to heal wounds in society, end civil strife and bring about reconciliation. For instance, after the American Civil War in the 19th century, President Abraham Lincoln and his successor President Andrew Johnson pardoned most of the soldiers who fought for the Confederacy. Similarly, after US President Richard Nixon resigned in 1974 in the aftermath of the Watergate scandal, he was pardoned by his successor President Gerald Ford on the grounds that a trial of a former president would cause too much political turmoil at a time when the country was facing several economic and security challenges. In India too, there is likely to come a time when the President might have to consider a pardon or more to bring an end to many of the violent separatist movements in the country.

Rubber-stamp president?

The next question concerns the question about the President being a rubber stamp for the Council of Ministers: is the President bound by their advice?

The President’s exercise of the power to pardon under the Indian Constitution is subject to Article 74, which requires the President to act with the aid and advice of the Council of Ministers while exercising his functions. While Indian Presidents rarely disagree with the advice of the government, the issue of mercy petitions related to death sentences has been an area of some controversy. Some Presidents like KR Narayan, APJ Abdul Kalam and Pratibha Patil are speculated to have sat on mercy petitions where they disagreed with the government advice. There have also been speculative reports that Pranab Mukherjee rejected the advice of the government while commuting the death sentence in five cases.

The debate at this stage is two-fold.

The first issue is whether the President is bound to follow the advice of the Council of Ministers and act as its rubber stamp.

In India, the role of the President is often equated to that of the Queen in the United Kingdom – that is, nothing more than a figurehead who is bound to act on the advice rendered by the Council of Ministers. However, unlike the Queen, the President of India is elected by over 5,000 legislators in Parliament and the states. Therefore, the President draws direct legitimacy from the direct representatives of Indian citizens. Why then should the President be expected to act as a rubber stamp of the Council of Ministers and not exercise his or her own opinion especially when the political party that controls Parliament usually never wins more than 35% of the entire vote? This line of thought does find some support in the Constitution.

In its original avatar, Article 74 required the Council of Ministers to merely aid and advise the President. However, in 1976, the 42nd Amendment to the Constitution, among other things, amended Article 74 to state that the President “shall” be required to “act in accordance” with the aid and advice rendered by the Council of Ministers. In other words, it indicated that the President was now bound to follow the advice of the Council of Ministers.

However, a law is only as good as a remedy for its breach. If the President declines to follow the advice of the Council of Ministers there are few remedies apart from impeachment since Article 74(2) states that “The question if any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

This means that the courts cannot inquire into the advice tendered by the ministers to the President and thus cannot set aside a Presidential order on the grounds that it disagreed with the advice with the Council of Ministers.

Therefore, if a President wants to disregard the advice of the Council of Ministers and operate as an independent power centre to keep in check the impulses of an authoritarian Council of Ministers, he or she can do so at the risk of a confrontation with that council, which may or may not initiate impeachment proceedings against the President. The same logic holds true for the President’s handling of mercy petitions.

The second issue is whether there should be more transparency in how the process of pardoning works. That is, should the Union Ministry of Home Affairs and the President provide reasons for their decisions, and should the communications between the President and Home Ministry on this issue be made public?

The Supreme Court has on occasion flirted with the idea of framing guidelines to regulate the exercise of the constitutional power to pardon but has refrained from doing so. In Kehar Singh v Union of India, it accepted the impossibility of laying down any guidelines to regulate the exercise of the President’s powers under Article 72. It said:

“Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under Article 72 this Court should draw up a set of guidelines for regulating the exercise of the power. It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude.”

If there is no duty for the President to follow any guidelines in exercise of his powers under Article 72, should there be any duty on the President or the Union Home Ministry to disclose their reasons while exercising their powers? More importantly, is it possible that Presidents will be less likely to exercise their power to pardon if they are required to provide reasons? Are fewer presidential pardons a desirable outcome in India today?