‘The exercise of executive clemency is not a privilege but is based on several principles, and discretion has to be exercised in public consideration.’ Analyse this statement in the context of judicial powers of the President of India.
The executive Clemency under Article 72 is a matter of discretion and yet subject to certain standards. It is not a matter of privilege as the President cannot arbitrarily exercise it for the benefit of the convict only and its exercise must be bona fide. Moreover this power is exercised by the Executive with the aid and advice of the council of ministers and is subject to judicial review.
It is a matter of performance of official duty. It is vested in the President not for the benefit of the convict only, but for the welfare of the people. The basic tenet behind executive clemency is not to overrule the punishment awarded through a judgment but the convict gets benefit of a liberalized policy of State pardon.
The Constitution has given this power to the Executive because founding fathers of the constitution were aware of the fact that there are issues which are often alien and irrelevant to judicial process like: morality, public good, social and political considerations etc.
Recently the executive Clemency was in news because of the cases related to Afzal Guru and mercy plea of those, convicted in the Rajiv Gandhi assassination case and Tamil Nadu assembly’s passage of a resolution over it.
However tendencies like politicization of the Clemency and using Clemency as a vehicle to gain political mileage must be avoided so that the exercise of this power remains to be bona fide, without delays and for the welfare of the country.