The power exercised by the President and the Governor is known as prerogative power.
Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty might lie. Whether the sovereign happened to be an absolute monarch or a popular republic or a constitutional king or queen, sovereignty has always been associated with the source of power-the power to appoint or dismiss public servants, the power to declare war and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes. The King, using the term in a most comprehensive sense, has been the symbol of the sovereignty of the State from whom emanate all power, authority and jurisdictions. As kingship was supposed to be of divine origin, an absolute king had no difficulty in proclaiming and enforcing his divine right to govern, which includes the right to rule, to administer and to dispense justice. It is a historical fact that it was this claim of divine right of kings that brought the Stuart Kings of England in conflict with Parliament as the spokesman of the people. We know that as a result of this struggle between the King, as embodiment of absolute power in all respects, and Parliament, as the champion of popular liberty, ultimately emerged the constitutional head of the Government in the person of the King who, in theory, wields all the power, but, in practice, laws are enacted by Parliament, the executive power vests in members of the Government, collectively called the Cabinet, and judicial power is vested in a Judiciary appointed by the Government in the name of His Majesty. Thus, in theory, His Majesty or Her Majesty continues to appoint the Judges of the highest courts, the members of the Government and the public servants, who hold office during the pleasure of the sovereign. As a result of historical processes emerged a clear cut division of governmental functions into executive, legislative and judicial. Thus was established the ” Rule of Law ” which has been the pride of Great Britain and which was highlighted by Prof. Dicey. The Rule of Law, in contradistinction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government. There has been a progressive increase in the power, authority and jurisdiction of the three wings of the Government and a corresponding diminution of absolute and arbitrary power of the King. It may, therefore, be said that the prerogatives of the Crown in England, which were wide and varied, have been progressively curtailed with a corresponding increase in the power, authority and jurisdiction of the three wings of Government, so much so that most of the prerogatives of the Crown, though in theory they have continued to be vested in it, are now exercised in his name by the Executive, the Legislature and the Judiciary. This dispersal of the Sovereign’s absolute power amongst the three wings of Government has now become the norm of division of power; and the prerogative is no greater than what the law allows. In the celebrated decision of the House of Lords in the case of Attorney General v. De Keyser’s Royal Hotel, Limited which involved the right of the Crown by virtue of its prerogative, to take possession of private property for administrative purposes in connection with the defence of the realm, it was held by the House of Lords that the Crown was not entitled by virtue of its prerogative or under any statute, to take possession of property belonging to a citizen for the purposes aforesaid, without paying compensation for use and occupation. The prerogative has been defined by a learned author as the residue of discretionary or arbitrary’ authority which at any given time is legally left in the hands of the Crown’. It is the ultimate resource of the executive, and when there exists a statutory provision covering precisely the same ground there is no longer any room for the exercise of the Royal Prerogative. It has been taken away by necessary implication because the two rights cannot live together. The prerogative is defined by a learned constitutional writer as ‘the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown-‘. Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed. The prerogative is thus created and limited by the common law, and the Sovereign can claim no prerogatives except such as the law allows, nor such as are contrary to Magna Carta, or any other statute, or to the liberties of the subject. The courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative.
The Supreme Court had an occasion to consider the concept of law of pardon in the case of K.M. Nanavati Vs. The State of Bombay, . The Constitution Bench in the said judgment held as under: –
We have thus briefly set out the history of the ‘genesis and development of the Royal Prerogative of Mercy because Mr. Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide and absolute, and can be exercised at any time. Very elaborate arguments were addressed by him before us on this ‘aspect of the matter and several English and American decisions were cited. In so far as his argument was that the power to suspend the sentence is a part of the larger power of granting pardon it may be relevant to consider incidentally the scope and extent of the said larger power; but, as we shall presently point out, the controversy raised by the present petition lies within a very narrow compass; and so concentration on the wide and absolute character of the power to grant pardon and overemphasis on judicial decisions which deal directly with the said question would not be very helpful for our present purpose. In fact we apprehend that entering into an elaborate discussion about the scope and effect of the said larger power, in the light of relevant judicial decisions, is likely to create confusion and to distract attention from the essential features of the very narrow point that falls to be considered in the present case. That is why we do not propose to enter into a discussion of the said topic or to refer to the several decisions cited under that topic.
Thereafter, they examined the statutory provisions as contained in the old Code of Criminal Procedure as well as in the Constitution. It Is stated as under : –
12. Let us now turn to the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted in 1898. Section 401 of the Code gives power to the executive to suspend the execution of the sentence or remit the whole or any port of the punishment without conditions or upon any conditions which the person sentenced accepts. Section 402 gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature. In addition the Governor-General had been delegated the power to exercise them prerogative power vesting in His Majesty. Sub-section (5) of s. 401 also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty, or the Governor-General when such right is delegated to him, to grant pardons, reprieves, respites or remissions of punishment This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Arts. 72 and 161. Article 72 deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 gives similar power to the Governor of a State with respect to offenses against any law relating to a matter to which the executive power of the State extends. Sections 401 and 402 of the Code have continued with necessary modifications to bring them into line with Arts. 72 and 161. It will be seen, however, that Arts. 72 and 161 not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in SS. 401 and 402 of the Code. Besides the general power, there is also provision in ss. 337 and 338 of the Code to tender pardon to an accomplice under certain conditions.
Interpreting Article 161 of the Constitution, the Apex Court held as under: –
13…..Though Art. 161 does not make any reference to Art 72 of the Constitution, the power of the Governor of a State to grant pardon etc. to some extent overlaps the same power of the President, particularly in the case of a sentence of death. Articles 75 and 161 are in very general terms. It is, therefore, argued that they are not subject to any limitations and the respective area of exercise of power under these two Articles is indicated separately in respect of the President and of the Governor of a State. It is further argued that the exercise of power under these two Articles is not fettered by the provisions of Arts. 142 and 145 of the, Constitution or by any other law.
Resorting to Article 142(1) they held as under :-
14. It will be seen that it consists of two parts. The first part gives power to this Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it The second part deals with the enforcement of the order passed by this Court Article 145 gives power to this Court with the approval of the President to make rules for regulating generally the practice and procedure of the Court It is obvious that the rules made under Art 145 are in aid of the power given to this Court under Art. 142 to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Dealing with the power of the Governor to grant pardons under Article 161 it is held as under : –
21. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called ” mercy jurisdiction “. Such a pardon after the accused person has been convicted by’ the Court has the effect of completely absolving him from all Punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such ‘mercy jurisdiction’. But the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this Court itself If in respect of the same period the Governor also has power-to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Art 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument in so far as it postulates what has to be established, namely, that the Governor’s power was absolute and not fettered in any way go long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of ss. 401 and 426 of the Code of Criminal Procedure and Arts. 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Art 142 is not covered by Art. 161 and similarly what is covered by s. 426 is not covered by s.401. On that interpretation, Mr. Seervai Would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and me power of the courts to deal with a pending cage judicially.