72. "Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.-
(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-
(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 against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force."
Origin of the concept of Welfare State and the importance of the concept of Separation of Powers
During the 20th century the concept of laissez faire lost its existence and there arose the concept of Welfare State. With the upcoming of Welfare State there had been a vast and inevitable increase in the relationship between the parts and functionaries of the State. The governmental power was basically divided into (i) the Legislature, (ii) the Executive and (iii) the Judiciary. In order to ejaculate the intrusions of the three wings of the government Montesquieu's theory of Separation of Powers was implemented. The theory of Separation of Powers lays down that these three wings of the government must in a free democracy always be kept separate and be exercised by separate organs of the government. Accordingly, the legislature cannot exercise executive or judicial power, the executive cannot exercise legislative or judicial power, and the judiciary cannot exercise legislative or executive powers of the government. But it should be noted that today the concept of Welfare State is that of a Modern State and the implication of Doctrine of Separation of Powers in its true sense is impossible. This non-enforcement has now laid down to a hectic situation where the three machineries of the State are now trying to overpower each other. The question put forward here, i.e. can the President's pardon be subjected to judicial review is also an outcome of the tug of war between the three machineries.
Powers of President
In India, the President is empowered with the power to pardon. If this power of President is subjected to judicial review it would be a clear cut encroachment of the judiciary in the executive and the Separation of Powers is defeated. Since the power of pardon is one of those powers of the President that makes his position strong, it depicts that his position is more than a rubber stamp in Indian Constitution. He is the only person who can grant pardon, remit or commute the vigorous punishments related to death penalty and others.
Pardoning Power in Capital punishment by President
Generally, the punishment dealt herewith is that of capital punishment. When an act done by a person is penalized by capital punishment the question arises whether the mercy pleading should be entertained, whether it is moral because generally such punishment in Indian perspective is only given in rarest of the rare cases. The defence given behind is that while every crime is an outrage that is deeply destructive of social and moral fabric, punishment can never undo the harm that has been suffered by the victims and the community. Therefore, mercy pleading should be entertained and granted. Hence this power to grant mercy and to analyze the moral and behavioural character of the accused or keeping the welfare of the society or to deeply articulate the moral and ethnic values of the nation lies in the hands of the President which differs his position from the high dignitaries of the nation.
Pardoning Power of President in India
The pardoning power of the President is not an absolute one but is governed by the advice of the Council of Ministers. Now we should think about what would have been the real issue in the mind of the framers of the Constitution for not imparting the President an absolute power. One thing should be made clear first that the framers were of the view that there should be a capital punishment and such capital punishment shall be pardoned on grounds of morality by the President. It could be said that the framers just wanted to put a check on the pardoning power of the President. It could be possible that a soft hearted President would pardon most of the mercy pleaders and for this it was the Council of Ministers who had to review it and give their advice.
The biggest question that arises in the minds of people is whether the President's position while granting pardon especially in the cases of capital punishment is same as that of God? Is he keeping all the moral and humanitarian grounds in his mind? If yes, then there is no need for the judicial review of his power as his act is absolute and final and no other person can judge his acts.
Thus, the power of President while granting pardon or remitting the punishment or commuting is absolute which is one of the examples of existence of flexibility in the Indian Constitution keeping in tune with the changes of the society from laissez faire to Welfare State.