GS Notes

Polity Notes 28

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PARDONING POWERS OF THE PRESIDENT

The pardoning power of the President of India is an executive power enshrined in Article 72 of the Constitution. It is not a private act of grace but is part of the constitutional scheme to be exercised on the advice of the Council of Ministers (Article 74). The rationale behind this power is to correct potential judicial errors, to afford relief from sentences that are unduly harsh, and to allow the executive to temper justice with mercy in specific cases.

  • Pardon: This is the most comprehensive form of the pardoning power. A pardon completely absolves the convict of both the sentence and the conviction. It effectively places the individual in the same position as if they had never committed the crime. Consequently, all sentences, punishments, and disqualifications attached to the conviction are removed. For instance, a person disqualified from holding a public office due to a conviction would have that disqualification lifted upon receiving a pardon.

  • Commutation: This refers to the substitution of one form of punishment for a lighter form. The nature of the sentence is altered. For example, a death sentence may be commuted to rigorous imprisonment for life. Similarly, a sentence of rigorous imprisonment (involving hard labor) can be commuted to simple imprisonment. This power is often exercised in cases where the executive believes the original sentence was excessively severe for the crime committed.

  • Remission: This implies reducing the period of a sentence without changing its character. For instance, a sentence of rigorous imprisonment for ten years may be remitted to rigorous imprisonment for seven years. The nature of the punishment (rigorous imprisonment) remains unchanged. The Supreme Court in State of Haryana v. Mahender Singh (2007) clarified that remission does not wipe out the conviction, it only reduces the sentence.

  • Respite: This involves awarding a lesser sentence in place of the one originally awarded due to some special fact or circumstance. The character of the sentence may or may not change. This is typically granted on humanitarian grounds. For example, the physical disability of a convict, their old age, or the pregnancy of a woman offender are considered valid grounds for granting respite.

  • Reprieve: This means a temporary stay of execution of a sentence, especially one of death. The purpose of a reprieve is to give the convict time to seek a pardon or commutation from the President. It temporarily postpones the execution of the sentence to allow for the exploration of legal or executive remedies.

Pardoning Powers: President vs. Governor

A comparative analysis of the pardoning powers of the President (Article 72) and the Governor of a state (Article 161) reveals significant distinctions:

  1. Scope of Power: The President’s power extends to cases where the punishment is for an offence against any Union Law, sentences by a military court (court-martial), and in all cases where the sentence is a sentence of death. The Governor’s power extends to cases where the punishment is for an offence against any State Law.
  2. Military Courts: The President is the only authority who can pardon, remit, or commute a sentence handed down by a court-martial. The Governor has no such power.
  3. Death Sentence: The President has the exclusive power to pardon a death sentence. While a Governor can suspend, remit, or commute a death sentence, they cannot pardon it. For instance, a Governor can commute a death sentence to life imprisonment, but only the President can completely absolve the person of the conviction and sentence.

Judicial Review

The exercise of pardoning power is not absolute or immune from judicial scrutiny. While courts have generally shown restraint, the Supreme Court in Maru Ram v. Union of India (1980) and later in Epuru Sudhakar v. Government of A.P. (2006) held that this power is subject to limited judicial review. The court can strike down an order of pardon if it is found to be passed on arbitrary, irrational, mala fide, or discriminatory grounds. The court’s role is not to decide the merits of the pardon but to ensure that the power was exercised in a manner consistent with constitutional principles.

VICE PRESIDENT

The office of the Vice-President of India is modelled on the lines of the American Vice-President and is the second-highest constitutional office in the country. The provisions related to the Vice-President are detailed in Articles 63 to 71 of the Constitution.

  • Elections (Article 66):

    • The Vice-President is elected indirectly by an electoral college.
    • Electoral College: It consists of all Members of Parliament, i.e., both elected and nominated members of the Lok Sabha and the Rajya Sabha.
    • Exclusion: Unlike the Presidential election, the members of State Legislative Assemblies do not participate in the Vice-President’s election. This is because the Vice-President’s primary role is as the Chairman of the Rajya Sabha, a function concerning the Union legislature alone.
    • The election is held in accordance with the system of proportional representation by means of the single transferable vote (STV) and the voting is by secret ballot.

  • Qualifications (Article 66(3)):

    • Must be a citizen of India.
    • Must have completed 35 years of age.
    • Must be qualified for election as a member of the Rajya Sabha.
    • Must not hold any office of profit under the Union government, any state government, or any local or other authority.
    • The nomination of a candidate for election must be subscribed by at least 20 electors as proposers and 20 electors as seconders.

  • Conditions of Office (Article 67):

    • The Vice-President shall not be a member of either House of Parliament or of a House of the Legislature of any State.
    • The term of office is five years from the date on which they enter upon their office. They can be re-elected for any number of terms.

  • Functions of Vice-President:

    • Ex-officio Chairman of the Rajya Sabha (Article 64): This is the primary function. The Vice-President presides over the sittings of the Rajya Sabha and exercises powers similar to the Speaker of the Lok Sabha. The salary and allowances are drawn in the capacity of the Chairman of the Rajya Sabha.
    • Acts as President (Article 65): The Vice-President acts as the President when a vacancy occurs in the office of the President due to resignation, removal, death, or otherwise. They can act as President for a maximum period of six months, within which a new President must be elected. When acting as President, the Vice-President is entitled to the salary and privileges of the President and does not perform the duties of the Chairman of the Rajya Sabha.

  • Historical Facts:

    • Dr. Sarvepalli Radhakrishnan (1952-1962) and Mohammad Hamid Ansari (2007-2017) are the only two Vice-Presidents to have served two consecutive terms.
    • Five Vice-Presidents have gone on to become President: Dr. S. Radhakrishnan, V.V. Giri, R. Venkataraman, Dr. Shankar Dayal Sharma, and K.R. Narayanan.

  • Removal (Article 67(b)):

    • The term “impeachment” is not used in the Constitution for the removal of the Vice-President.
    • A resolution for removal must be initiated only in the Rajya Sabha.
    • The resolution must be passed in the Rajya Sabha by an effective majority (a majority of all the then members of the House).
    • The resolution must then be agreed to by the Lok Sabha with a simple majority (a majority of the members present and voting).
    • A 14-day advance notice must be given before moving the resolution.
    • Notably, the Constitution does not specify any grounds for the removal of the Vice-President.

JUDICIARY

The Indian judicial system is a product of its colonial past but was fundamentally reimagined by the Constituent Assembly to serve a sovereign, democratic republic.

  • British Legacy and Constitutional Departure:

    • The British introduced a system of ‘Rational Legal Administration’ based on codified laws and a hierarchical court system, culminating in the establishment of High Courts under the Indian High Courts Act, 1861, and a Federal Court under the Government of India Act, 1935.
    • However, the colonial judiciary had two fundamental flaws:
      1. Lack of Independence: It operated under the principle of “Rule by Law,” where law was an instrument of the colonial state. The Governor-General could overturn judicial decisions. The Sedition Law (Section 124A of IPC) was used to suppress the freedom movement, as seen in the trial of Bal Gangadhar Tilak (1897, 1908).
      2. Lack of Impartiality: There was racial discrimination. The infamous Ilbert Bill controversy (1883), which proposed to allow Indian judges to try Europeans, faced massive opposition from the European community, highlighting the entrenched bias.
    • The framers of the Indian Constitution consciously departed from this legacy, establishing an independent and impartial judiciary as a cornerstone of the new republic. This departure is evidence against the simplistic argument that the Constitution is merely a continuation of the Government of India Act, 1935.

  • Constitutional Functions of the Judiciary:

    1. Protection of Fundamental Rights (FRs): The judiciary is the ultimate guardian of the FRs of citizens. It can protect them from encroachment by the legislature, executive, and even other private individuals. This power is primarily exercised through the writ jurisdiction under Article 32 (Supreme Court) and Article 226 (High Courts).
    2. Ensuring Constitutional Governance: The judiciary acts as the final interpreter of the Constitution. It ensures that all organs of the state—legislature and executive—function within the limits prescribed by the Constitution. This is achieved through the power of Judicial Review.

  • Key Constitutional Articles:

    • Article 13: Declares that any law inconsistent with or in derogation of Fundamental Rights shall be void. This is the source of the power of judicial review.
    • Article 32 & 226: Grant the power to issue writs (Habeas Corpus, Mandamus, etc.) for the enforcement of FRs.
    • Article 131: Confers original jurisdiction on the Supreme Court to decide disputes between the Centre and states or between states.
    • Article 141: States that the law declared by the Supreme Court shall be binding on all courts within the territory of India, establishing an integrated judicial system.
    • Article 142: Grants the Supreme Court the power to pass any decree or order necessary for doing “complete justice” in any matter pending before it. This was notably used in the Vishaka v. State of Rajasthan (1997) case to lay down guidelines against sexual harassment at the workplace.
    • Article 139: Empowers Parliament to confer on the Supreme Court the power to issue writs for purposes other than the enforcement of FRs.

PHASES OF JUDICIAL PERFORMANCE

The performance and orientation of the Indian judiciary have evolved significantly since 1950. Former Chief Justice of India, M.N. Venkatachaliah, among other scholars, has periodized this evolution.

Phase I: The Passive Phase (1950-1967)

  • Context: This was the era of nation-building. The political executive, led by figures from the freedom struggle like Jawaharlal Nehru, enjoyed immense public trust and credibility. The government was focused on implementing a socialistic agenda, particularly land reforms, to achieve redistributive justice. At independence, a tiny fraction of zamindars controlled a vast majority of the land.
  • Legislative Action: To implement land ceiling acts and other reforms, the government passed the First Constitutional Amendment Act (1951). This amendment introduced the Ninth Schedule to protect land reform laws from being challenged in court on the grounds that they violated Fundamental Rights.
  • Judicial Stance: The judiciary adopted a stance of deference and restraint. It chose not to interfere with the socio-economic agenda of the government. This passivity was rooted in the belief that the elected representatives were best suited to address the country’s pressing problems.
  • Landmark Case: In A.K. Gopalan v. State of Madras (1950), the Supreme Court took a very narrow and literal interpretation of Article 21. It held that ‘procedure established by law’ meant any procedure established by a validly enacted law, regardless of its fairness or reasonableness. This approach exemplified judicial restraint, where the court refused to question the substantive intent of the legislature.

Phase II: The Conflict Phase (1967-1975)

  • Context: The political and economic landscape had changed. The credibility of the government was eroded by the 1962 Sino-Indian War, a severe food crisis due to neglect of agriculture in the Second Five-Year Plan, and growing political instability. Indira Gandhi’s rise was marked by populist measures like the abolition of privy purses and the nationalization of 14 major private banks.
  • Judicial Activism Begins: The judiciary shed its passive role and began to assert its authority.
  • Landmark Cases and Legislative Responses:
    • I.C. Golaknath v. State of Punjab (1967): In a major shift, the Supreme Court ruled that Parliament did not have the power to amend Fundamental Rights. It declared that FRs were ‘transcendental and immutable’. This judgment pitted the judiciary directly against Parliament.
    • The government, under Indira Gandhi, reacted sharply. The Supreme Court struck down the bank nationalization act and the abolition of privy purses.
    • Parliament’s Counter-Offensive: After a massive victory in the 1971 elections, the government passed the 24th and 25th Constitutional Amendment Acts.
      • The 24th CAA (1971) amended Article 13 and 368 to explicitly empower Parliament to amend any part of the Constitution, including FRs.
      • The 25th CAA (1971) inserted Article 31C, which stated that no law giving effect to the DPSP in Article 39(b) and (c) could be challenged on the grounds of violating Articles 14, 19, or 31.
    • The Kesavananda Bharati Judgment (1973): This was the judiciary’s response. A 13-judge bench, by a narrow 7:6 majority, delivered a landmark verdict that sought to create a balance.
      • It overruled the Golaknath decision and affirmed Parliament’s power to amend any part of the Constitution, including Fundamental Rights.
      • However, it introduced the seminal Doctrine of the Basic Structure. It held that while Parliament’s amending power was vast, it was not unlimited and did not extend to altering the ‘basic structure’ or framework of the Constitution.
      • What constitutes the ‘basic structure’ was left to be defined by the courts on a case-by-case basis. Examples include the supremacy of the Constitution, rule of law, independence of the judiciary, parliamentary democracy, etc. This doctrine established that Parliament is supreme, but not sovereign.

Phase III: The Darkest Phase (1975-1977)

  • Context: The imposition of the National Emergency in 1975 following the Allahabad High Court’s judgment disqualifying Prime Minister Indira Gandhi’s election. During this period, civil liberties were suspended.
  • Judicial Failure: The judiciary is widely seen to have failed in its primary functions of protecting FRs and upholding constitutional governance.
  • Landmark Case: ADM Jabalpur v. Shivkant Shukla (1976), also known as the Habeas Corpus case. The Supreme Court, by a 4:1 majority (with Justice H.R. Khanna’s dissent being a celebrated exception), held that during the Emergency, a person’s right to approach a High Court under Article 226 for a writ of habeas corpus challenging their detention was suspended. This decision was seen as a capitulation to the executive. The Attorney General, Niren De, infamously argued that even the Right to Life was not absolute during the Emergency.
  • Legislative Action: The 42nd Constitutional Amendment Act (1976) was passed, drastically curtailing the powers of the judiciary. It expanded Article 31C to give precedence to all DPSPs over FRs and sought to make constitutional amendments immune from judicial review.

Phase IV: The Revival Phase (1977-1980)

  • Context: The end of the Emergency and the election of the Janata Party government created a political climate conducive to restoring constitutional balance.
  • Judiciary Reclaims Authority: The Supreme Court began to reassert its role as the guardian of the Constitution.
  • Landmark Cases:
    • Maneka Gandhi v. Union of India (1978): This case revolutionized Indian constitutional law. The Court overruled its A.K. Gopalan judgment and held that ‘procedure established by law’ under Article 21 must be ‘right, just and fair’ and not arbitrary. It effectively imported the American concept of ‘Due Process of Law’ into Article 21, vastly expanding its scope to include a variety of rights like the right to travel abroad, right to dignity, etc.
    • Minerva Mills v. Union of India (1980): The Court struck down clauses of the 42nd Amendment that gave absolute primacy to DPSPs over FRs and curtailed judicial review. It held that judicial review and the harmony and balance between Fundamental Rights and Directive Principles are essential features of the basic structure of the Constitution. It famously stated that the Indian Constitution is founded on the bedrock of this balance.

Phase V: Judicial Activism (1980 onwards)

  • This phase marks a significant expansion of the judiciary’s role. It is characterized by the relaxation of the traditional rule of locus standi and the introduction of Public Interest Litigation (PIL). Led by jurists like Justice V.R. Krishna Iyer and Justice P.N. Bhagwati, the court started entertaining petitions on behalf of the poor, oppressed, and marginalized sections of society, thereby making justice more accessible. This era saw the judiciary intervening in matters of governance, environmental protection, and human rights, sometimes leading to accusations of judicial overreach.

Prelims Pointers

  • Pardoning Power (President): Article 72.
  • Pardoning Power (Governor): Article 161.
  • Types of Pardon:
    • Pardon: Absolves from all sentences and disqualifications.
    • Commutation: Substitution of a harsher punishment with a lighter one.
    • Remission: Reducing the duration of a sentence without changing its character.
    • Respite: Awarding a lesser sentence due to special circumstances (e.g., pregnancy).
    • Reprieve: Temporary stay on the execution of a sentence.
  • President vs. Governor (Pardon):
    • President can pardon sentences by a military court; Governor cannot.
    • Only the President can pardon a death sentence.
  • Judicial Review of Pardon: Limited review is possible on grounds of arbitrariness, mala fides, or irrationality (Epuru Sudhakar case, 2006).
  • Vice-President (VP):
    • Articles 63-71 deal with the Vice-President.
    • Electoral College: Elected and nominated members of both Lok Sabha and Rajya Sabha.
    • Members of State Legislative Assemblies do not participate in the VP’s election.
    • Qualifications: Citizen, 35+ years of age, qualified to be a member of Rajya Sabha.
    • Functions: Ex-officio Chairman of Rajya Sabha; Acts as President during a vacancy.
    • Removal: Resolution initiated only in Rajya Sabha (effective majority) and agreed to by Lok Sabha (simple majority). 14-day notice required.
  • Key Judiciary Articles:
    • Article 13: Judicial Review.
    • Article 32: Right to Constitutional Remedies (SC).
    • Article 141: Law declared by SC is binding on all courts.
    • Article 142: Power of SC to do “complete justice”.
    • Article 226: Writ jurisdiction of High Courts.
  • Landmark Cases & Doctrines:
    1. A.K. Gopalan (1950): Confirmed ‘Procedure Established by Law’ in a narrow sense.
    2. Golaknath (1967): Parliament cannot amend Fundamental Rights.
    3. Kesavananda Bharati (1973): Introduced the ‘Basic Structure Doctrine’.
    4. ADM Jabalpur (1976): Suspension of Habeas Corpus during Emergency.
    5. Maneka Gandhi (1978): Introduced ‘Due Process of Law’ into Article 21.
    6. Minerva Mills (1980): Judicial review and harmony between FRs & DPSPs are part of the basic structure.
  • Key Constitutional Amendments:
    • 1st CAA (1951): Introduced the Ninth Schedule.
    • 24th CAA (1971): Affirmed Parliament’s power to amend any part of the Constitution.
    • 42nd CAA (1976): Known as the ‘mini-constitution’; curtailed judicial review.

Mains Insights

GS Paper II: Polity and Governance

  1. Pardoning Power: A Check on Judiciary or Executive Overreach?

    • Rationale: The pardoning power serves as a crucial executive check on the judiciary, acting as a final safeguard against judicial error or excessive punishment. It embodies the concept of mercy and allows the state to respond to humanitarian concerns.
    • Debate on Misuse: The power, being exercised on the advice of the council of ministers, is susceptible to political considerations. There have been debates over its use in cases involving politically connected individuals, raising questions about its fairness and transparency.
    • Judicial Scrutiny: The evolution from complete executive discretion to limited judicial review (Epuru Sudhakar case) reflects the judiciary’s role in upholding the rule of law and ensuring that even high executive powers are not exercised arbitrarily. This maintains a delicate balance between executive prerogative and constitutionalism.

  2. The Office of the Vice-President: Ceremonial or Significant?

    • View of a Ceremonial Office: Critics argue the office is largely ceremonial, with the primary regular function being the chairmanship of the Rajya Sabha. The role of acting President is infrequent. Some scholars have termed it “His Superfluous Highness”.
    • View of a Significant Office: This view highlights the VP’s critical role in maintaining political continuity at the highest level. As the Rajya Sabha chairman, the VP plays a pivotal role in the legislative process, ensuring the smooth functioning of the Upper House, which represents the states. Their impartiality is crucial for a federal polity.

  3. The Tussle for Supremacy: Parliament vs. Judiciary

    • Cause-Effect Relationship: The entire period from 1950 to 1980 can be seen as a dialectical struggle between parliamentary sovereignty and judicial supremacy. The legislature, seeking to implement its socio-economic agenda (DPSPs), often found its laws challenged for violating individual rights (FRs). This conflict was the primary driver of major constitutional amendments (1st, 24th, 42nd) and landmark judicial doctrines (Basic Structure).
    • Historiographical Viewpoint: Jurists like Granville Austin (“The Indian Constitution: Cornerstone of a Nation”, 1966) describe the Indian Constitution as a ‘seamless web’, where FRs and DPSPs are intertwined. The conflict arose when the state prioritized one over the other. The Minerva Mills judgment, which established ‘harmony and balance’ as a basic feature, represents the final synthesis in this dialectic.
    • The Basic Structure Doctrine: This doctrine is a uniquely Indian judicial innovation. It is a prime example of judicial craftsmanship that resolved the tension by creating a pragmatic balance: it allows Parliament to amend the constitution to meet changing needs while preventing it from destroying the constitution’s core identity.

  4. Evolution of Article 21: From ‘Procedure Established by Law’ to ‘Due Process of Law’

    • The journey from the restrictive interpretation in A.K. Gopalan to the expansive one in Maneka Gandhi marks the transformation of the Indian judiciary from a text-based legal positivism to a rights-based natural justice approach.
    • This shift has had profound implications, making the Right to Life a repository of numerous unenumerated rights, including the right to a clean environment, the right to privacy (Justice K.S. Puttaswamy v. Union of India, 2017), right to livelihood, etc., significantly empowering the citizen against the state.

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