Earlier this month, the President of India had rejected the mercy petition of Aakash Kumar Singh, one of the convicted individuals in the Nirbhaya Case. Singh’s lawyer went to the Supreme Court and requested that the Court review the correspondence and official file noting related to the mercy petition. However, the Court refused to come in and argued that that the scope of judicial review with regards to the President’s powers of granting mercy is very limited.
The President's powers to grant mercy, pardons, commute sentence etc. is given by Article 72 of the Constitution. This Article was taken up in the Constituent Assembly on On 29th December 1948, This Article was previously debated by Constituent Assembly on 31st July 1947 when it considered the report of the Union Constitution Committee. There seemed to have been a consensus that the President must have powers of pardon, commutation etc. Interestingly, the debate in Assembly focussed more on the federal aspects of these powers.
Draft Article 59 read:
1) 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 (in this piece these powers shall be referred to as ‘extraordinary powers’) -
a) in all cases where the punishment or sentence is by a Court Martial
b) in all cases where the punishment or sentence is for an offence under any law relating to matter with respect to which parliament has, and the legislature of the state in which the offence is committed has not, power to make laws;
c) in all cases where the sentence is sentence of death.
2) Nothing in sub- clause (a) of clause (1) of this article shall affect the power conferred by law on any officer of the Armed Forces of India to suspend, remit or commute a sentence passed by a Court Martial.
3) Nothing in sub-clause (c) of clause (1) of this article shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or the Ruler of the State under any law for the time being in force.
Tajamul Hussain proposed an amendment to delete Clause 3 of the Article. He believed that the Clause was not in line with principles of federalism and distribution of powers – a strong centre, adopted after the partition - embodied the Draft Constitution. He did not want Governors and Rulers of the Princely States to have the extraordinary powers; the President of India, he added, must be the ‘Supreme authority’ with respect to offences committed under federal subjects and he alone should have extraordinary powers – similar to the United States.
R.K. Sidhwa opposed Hussain’s amendment and felt it was important for the Governor to also possess extraordinary powers over offences under federal subject as the Governor in a province, being better informed about a case in his state, would be in a better position to exercise extraordinary powers. Sidhwa further argued that even in a situation where the case of clemency etc. reached the President directly – the President would first consult with the Governor. Sidhwa ended by saying that there were enough checks on the Governor’s use of the extraordinary powers: he will be watched by his legislature and in the case of misuse – the President can also step in.
B.R Ambedkar was the third and last participant in the debate and echoed Sidhwa’s arguments. He emphasised that in case a mercy petition (say) of a convicted person gets rejected by the Governor, the person could try his/her luck – the last chance – with the President.
After Ambedkar’s intervention, Draft Article 51 was taken up for a vote. Hussain’s amendment was negatived and the Assembly adopted the Draft Article. However, the Draft Article was taken up once again in the Assembly less than a year later.
On the 17th of October 1949, T.T. Krishnamachari moved an amendment to replace Sub-Clause 2 (Clause 1). The rationale behind the amendment, Krishnamchari argued, was to allow for offences under concurrent subjects to also come under the President's extraordinary powers. The Assembly adopted Krishnamachari’s amendment.