I am granting your application because you have demonstrated the potential to turn your life around. Now it is up to you to make the most of this opportunity. It will not be easy, and you will come across many who doubt people with criminal records can change.[1]-Barack Obama

Judges discharge justice according to the best of their knowledge and administer the laws, whatever the laws may be. Nevertheless, they are not infallible. Judicial methods are, at times, not adequate to secure justice.[2] Also, the offenders, once convicted, are known to display remorse and a desire to improve. While there is no guarantee that if released, those offenders will not again transgress the laws, there is an element of trust here, which is the foundation stone of civilised living.

The need for pardoning power was acknowledged by the Indian Courts in the case of Kehar Singh v. Union of India,[3] wherein it was observed that human judgement, even though it may be by a supremely trained mind, can be egregious and, therefore, power is entrusted in an even higher authority to examine the threatened denial to life and personal liberty.

With the COVID-19 outbreak, a fear of its spread in the overcrowded prisons had increased. At present, as many as 466084 convicts in the country occupied just 1339 jails.[4] Restricted and congested places are an identifiable hotbed of communicable diseases and thus, the jails in India are/were a magnet for the uncontrollable spread of this virus. The World Health Organisation has strictly suggested social distancing and isolation as the most effective way to thrive during these times.[5]

As a measure, orders were given to the Government of India by the Supreme Court to release the undertrial prisoners, who were sentenced for a period of 7 years or less. Thus, our justice system is bestowed upon with the crucial role of handling the health of the masses vis a vis the security of the state which may be put to threat by the release of such prisoners.

Though, startlingly no mention was made to use the inbuilt mechanism, already provided for by our Constitution, as a tool to resolve this problem- the power to pardon.
Pardoning power- a tried and tested formulae- could have also helped in lightning the pressure of prisons and it would have been a more reliable method than just randomly releasing the convicts and threatening the safety of the State.

Unreasonable delay in the execution of mercy petitions, and ambiguity in the components based on which remission is offered- -are some crucial areas which were once again highlighted in the light of this ongoing pandemic.

An attempt has been, thus, made through this paper to examine the status of prisoners right in this pandemic and the effectiveness of the power to pardon to deal with this gruesome condition of the prisons at hand.

Evolution of Pardoning Power

Many possible analogies can be drawn with the ancient practices of pardoning accused individuals; though the concept of pardon as contained in the Indian Constitution can most realistically be said to be derived from the British tradition of granting mercy.

During the British rule, the power of pardon was vested with the monarch who was free from any judicial review. From here, it found a place in the Constitution of India. It was first inscribed in Section 295 of the Government of India Act, 1935 and then subsequently Article 72/161 of the Constitution of India, 1950 entitled it with the President of India/Governor of the State respectively.

The President is nothing but a functional euphemism. He/she is bound by the aid and advice of the Council of Ministers and cannot act on his/her discretion in matters relating to pardoning power.[6] He is empowered to grant pardons, reprieves, respites, or to suspend or commute or remit the sentence of any person convicted of any offence. An analogous power is given to the Governor of any state under Article 161.[7] In addition to this, Section 432, 433, 433A, 434, 435 of CrPC[8] and 54,55 of IPC entitles the government to curtail the sentence of life imprisonment or capital punishment as provided therein.

Section 432 & 433 CrPC are not a manifestation of Article 72/161. They are to be treated like a similar source of power which cannot override or abrogate the constitutional power to pardon, commute, remission and the like.[9]

While dealing with the mercy petitions of the assassins of the Indira Gandhi case,[10] the Supreme Court held that Article 72 falls squarely within the judicial review. However, the order of the President cannot be subject to judicial review except when it falls within the limitations as laid down in the Maru Ram case.[11]

According to this case, pardoning power can be subjected to review when an executive decision has been made on wholly arbitrary, irrational, unreasonable and malafide grounds such as discrimination based on caste, creed, religion or political loyalty. However, the Supreme Court has wisely refrained from laying down any explicit guidelines for the exercise of this power.

Fundamental rights vis -a- vis pardoning power

It is important to note that Article 14 prevents arbitrary discretion from being vested in the executive. The Apex court in State of West Bengal v. Anwar Ali Sarkar,[12] had held a law to be invalid on the ground that the use of vague expressions, like Speedier Trial, conferred a wide discretion on the government, which can be a basis of unreasonable classification. Inordinate delay in executing mercy petitions is also inhumane and barbarous. We are shameful for having too many undertrial detainees in our prisons because of an overburdened judicial apparatus and a languid pace of trials.[13]

After 11 years passed, the mercy pleas of the death convicts Murugan, Santhan & Peraivalan in Prime Minister Rajiv Gandhi's assassination case, were rejected by the then President of India.[14] Locking away a person for long years and ultimately condemning him/her to death after a massive delay on the government's part is not in keeping with the ideals of a truly modern society.

This is not the only case. The number of mercy petitions disposed of too has decreased drastically from 94% in between 1948-74 to 6.2% in 1974-2017.[15] The government seems to be apathetic to the plight of such convicts who are kept in suspense for many years. Courts in all civilised states, including India's Supreme Court, have recognised that any prolonged delay in executing a death sentence can make the punishment when it comes, more degrading and inhuman. It is evident that the lack of procedure in dealing with mercy petitions stands in contravention to principles enshrined under Article 21.

The Apex Court in 1983 thereafter held that the executive authorities should follow a self-imposed rule that every such petition should be disposed of within a three months period from the date it is received. In other cases, the Supreme Court then commuted the sentence of death to life imprisonment because of the unconscionable delay and suspense entailed for the convict.[16]

On September 18, 2009, the Supreme Court had to again explicitly remind the government of its obligations, concerning the 26 mercy petitions that were then pending with the President. On July 16, 2020, a Bench of Justice S.A. Bobde, Justice R. Subhash Reddy, & Justice A.S. Bopanna sought response from the Center on the untimely disposal of mercy petitions.
It is a fallacious to think that the pardoning power given to the President and the Governor under the Constitution of India is an act of grace or mercy.[17]

The power endowed on the President and the Governor is a part of India's constitutional scheme and is an intrinsic part of the criminal justice system. The convict has a constitutional right to have his/her petition considered by the President or the Governor on relevant grounds, including miscarriage of justice.

Prisoners & The Pandemic

At this time of the pandemic, the condition of jails, prisons, and immigration detention centres is highly concerning. Discussions are taking place to provide every available legal mechanism to secure the release of prisoners and detainees who pose little or no threat to public safety and whose health and safety are themselves severely endangered by their enforced captivity.[18]
Indian prisons are today working at one hundred and fifteen percent of their capacity.[19] The unsanitary and overcrowded conditions mean that the prisoners are at a high risk of contracting Covid-19. The impact of the virus and the grim circumstances in the prison has inevitably affected the prisoners' mental and physical well-being.[20]

Recently as per the orders of the Supreme Court, over thousands of under-trial convicts have been released on bail to curb the spread of Covid-19.[21] Many people have questioned how the interim bail and the release schemes have been implemented.

More than 100 prisoners of central jail in Rajasthan were tested positive for COVID-19. The High Court of Rajasthan soon came into action when a division bench at the court, took suo-motu cognizance of the matter for the inmates being tested positive on around May 17th, gave instructions to control the spread of virus in prisons.[22]

Nevertheless, the release of under-trial prisoners was at the peak during this season. Many undertrial prisoners have already completed more than half of their sentence, even before the proceedings could be initiated against them. A committee comprising three members (made on the directions of Justice Madan Lokur) issued guidelines to release such under-trial prisoners and other such prisoners if they are elderly, infirm, or require medical care.[23] This committee was instructed to review these guidelines frequently. The effectiveness of the orders cannot be interpreted as of now.

The coronavirus situation, thus, has once more raised the alarm on the topic of over-crowded prisons.

How is the right to life and health insured for the prisoners?

The Supreme Court has been taking up such cases suo moto in the last few days. In one of the recent cases, it was said that there should be distancing within the prisons accompanied by regular health check-ups and necessary quarantining measures. The recommendation for setting up a high-powered committee in each state in addition to the already present undertrials committee was given. This high-powered committee would include a high court judge, head of the legal services committee, and the Director General of the prison. The purpose behind forming this high- powered committee was to ensure the prisoners' release in a proper manner.

In lieu of this, many prisoners have been released. Maharashtra freed ten to fifteen thousand prisoners on bail and parole. Kerala has also released up to a thousand prisoners. Still, we see that the persons convicted under the Unlawful Activities (Prevention) Act, 1967 or other offences against the state are kept in prisons even if they are aged, elderly or highly susceptible of catching COVID-19.[24]

How to respond constitutionally at this time is very disputable. Whether to respect the prisoners' right to health and life,[25] which is at high risk during the COVID-19, or to let the extremely severe charges slapped upon the offenders, hold ground?

Besides, the interim bail and early release demand increasing, pressure is created on the government to effectively use the tool of pardoning power; an already inbuilt mechanism in our Constitution that can be optimally utilised to control the situation at hand. Timely disposal of mercy petitions is a solution that can help the criminal justice system thrive during this pandemic.
Lack of intelligible differentia while exercising pardoning power is inconsistent with the international standards also, along with Article 21 & 14 of the Constitution of India, 1950.

International Scenario:

Countries around the world are facing similar issues. Therefore, it's essential to understand the world scenario to get a global perspective and take suggestions if possible.

Article 12 of the International Economic, Social and Cultural Rights Covenant specifies that a state shall "respect and protect the right of everyone, including those who are imprisoned, to enjoy the highest attainable standard of physical and mental health."[26]

There are some other international laws that indicate the importance of prisoner's rights. One of them is the UN Standard Minimum Rule for the Treatment of Prisoners. The rule proposes that the convicts and undertrial prisoners must be released to protect their right to life in this current health crisis.[27]

International Covenant on Civil and Political Rights, is another important legislation which protects the human rights of individuals or prisoners in this current scenario. Article 6[28] of the regulation talks about the right to life of all human beings, and this right continues to apply in all circumstances, including the emergencies and armed conflicts. Article 7 of the regulation establishes equality before law, equal protection of laws.[29] It states that no one shall be subjected to torture or degrading treatment or punishment or inhuman treatment.

The prisons in Pakistan have many issues which are similar in nature to those of Indian prisons. Congested operating places, poor sanitation and ventilation facilities are some of them.[30] Amidst the pandemic, such an unhygienic and congested environment can lead to the spread of the virus at a significantly high rate, which thus hinders the rights of the prisoners to have a healthy life.

To curb those issues the Pakistan Policy makers have tried to work on the Probation & Parole Policy.[31] The Supreme Court of Pakistan has directed all district court judges to inspect the prisons and free all those who are falling within the category of the 'Probation & Parole policy'. They have also asked the prison officials to keep a check upon those prisoners, who fell in the 'prohibitory clause' as per which the inmates who are highly dangerous to the society, are to be kept quarantined in a designated and segregated place.[32]

They ordered the grant of bail to under-trial prisoners, specifically suspending the sentence of those who were punished for 5 years or less. There are some of the initial decisions taken by the administration of Pakistan to curb the spread of the virus.

Additionally, The Governor has the power under Section 401 Code of Criminal Procedure of Pakistan to suspend or commute the execution of sentence or to remit the whole or part of sentence of a prisoner.[33] Under Article 45 of the Constitution, the President of Pakistan has the power to grant unconditional pardon for any offence.[34]

Similarly, the United Kingdom's Government has released guidelines for the prison officials which says any prisoner or detainee with a new, continuous cough or a high temperature should be placed in protective isolation for 7 days.[35] In Manchester, they have already started releasing low-risk offenders on short sentences to reduce the risk of Covid-19 on the prison population. Also, on 21st March 2020 Justice Secretary David Gauke passed an order for suspending short sentences and early releases of some prisoners.[36]

In the United States, the jail officials across the country are trying to prevent the outbreak of the virus, in the nation where there are 6000 prisons to handle by administration. Between March 22 and March 26, twenty-three inmates had escaped and at least one inmate was tested positive for COVID-19 in each prison. [37]

On the other hand, some countries are suffering violence, loss and damage too due to the outrageous actions of the prisoners. These acts have been contemplated as a revolt against their right to health in the time of COVID-19. In Italy, there were riots in 27 prisons with six inmates reportedly killed and the prison staffs were taken in hostage by prisoners.[38]

Rationality Behind Granting Pardon

There are many theories explaining the rationale behind granting pardon to offenders. The Hegelian view suggests that pardons are legitimised only when they are justice-enhancing, i.e., in certain cases justice may not be served except with the grant of pardon, due to the unduly harsh nature of the sentence or the individual being sentenced wrongly. This view is similar to the theory of retribution.
The retributivist school of thought believes that pardon is justified only when an extrajudicial corrective measure is required to remedy the failure of the system. Thus, the ultimate aim of both is justice enhancement.

The rehabilitation & redemption view, in contrast to the retributivist school believes that pardon may be justified even when the goal is justice-neutral, that is, it is not necessarily concerned with the aim of achieving justice. It gives more importance to reformation, post- conviction achievements of the offender, which is not at all relevant as per the retributivists view. The redemptive view supports pardon on the grounds of public welfare and compassion.

The modern practice of granting pardon reflects a combination of both the afore-mentioned principles, since pardon may be granted as both justice-neutral and justice-enhancing measures.
Thus, when we have such reliable, well-conditioned constitutional provisions present already, which can efficaciously help in executing the purpose of reducing the prison population in the pandemic, then why not use it?

Pardoning Power not just betters the public welfare but is also a more secure and dependable rule of law than the random releasing of prisoners who have been sentenced for 7 years or less in the pandemic.

The Way Forward
The ultimate aim should be to discharge cases of pardon and to release undertrials in an expeditious manner. This is because if the outbreak happens in the jails it would put an extra burden on the health care services.

Pardoning power is an A list of recommendations is suggested over here (including the ones laid down by WHO) which can be implemented in India, to control the situation at hand:
· Develop protocols for social distancing, environmental cleaning, disinfection, and restriction of movement.

• Mental health is an important factor to be kept in mind while isolating the prisoner or else isolation can have ill mental health effects.[39]
• Prisoners who have completed their sentences and show no sign of diseases should be left at earliest.
• Food quality should be given due attention in order to develop a strong immune system.
• Trained staff to be deployed to clean the premises and sanitise the washrooms as washrooms in Indian prisons are used by humungous people and can be a breeding ground for catching virus.
• Preferential visits should only be allowed in the jail premises.
• Doctors must be appointed to reduce the number of visits of prisoners from jails to hospitals.

But there are a series of questions that should crop up in our mind when we ask for a swift pardon process or for quick release process of under trials. A speedy procedure of granting pardon is proportional to an increase in the number of offenders out on the streets. Are we ready to help these people?

How can it be said that they have improved while being imprisoned and are not a potential danger to the society when most of the prisons don't even have psychologists to review their mental and emotional balance? How much are we the general public sensitised towards the rights of other persons? How much is the virtue of acceptability taught to the students in their schools?

In practicality, we are way behind 'in thought and in process' to establish a society which can treat released offenders with respect and dignity. As a part of this society, it is our duty first, as an individual, that we must learn to be more humane, compassionate, and considerate towards everyone whilst passing on these values to the younger generations too.

Conclusion
The case for pardoning power lingers creating apprehensions for both the offenders and the victims. It may happen that due to the prolonged delay in hearing a mercy petition, the offender takes advantage of the situation and gets remitted on the ground of unreasonable delay alone, irrespective of the injustice done to the victims or their families. Incredulity in the system is indicated by this.

The suggested changes would eliminate the possibility of miscarriage of justice, ensuring timely disposal of petitions relieving both the victims and the accused of the apprehensions of the future.

End-Notes:

1. Sriram Lakshman, The power and limits of presidential pardon, The Hindu (Mar. 17, 2019, 02:11 PM), https://www.thehindu.com/news/international/the-power-and-limits-of-presidential-pardon/article26555459.ece
2. H.M. Seervai, Constitutional Law of India, Universal Law Publishing Co. Pvt. Ltd., http://elearning.vtu.ac.in/P3/CIP71/7.pdf.
3. (1989) 1 SCC 204.
4. A case for releasing inmates of Assam Detention Camp, BHRPC (Apr. 10 2020), https://bhrpc.wordpress.com/tag/covid-19/.
5. Abdulazeez Adeyemi Anjorin, The coronavirus disease 2019 (COVID-19) pandemic: A review and an update on cases in Africa, Asian Pacific Journal of Tropical Medicine (Apr. 2020), https://www.researchgate.net/publication/340342646_The_coronavirus_disease_2019_COVID-19_pandemic_A_review_and_an_update_on_cases_in_Africa.
6. The Constitution of India, 1950, Professional Book Publishers, art 74 (2019).
7. The Constitution of India, 1950, Professional Book Publishers, art 161 (2019).
8. The Code of Criminal Procedure, 1973.
9. Pyare Lal v. State of Haryana, Criminal Appeal No.1003 of 2017.
10. Kehar Singh & Ors vs State (Delhi Admn.), 1988 SCR Supl. (2) 24.
11. Maru Ram Etc. Etc vs Union of India & Anr, (1981) 1 SCC 107.
12. 1952 SCR 284
13. Ritwik Sinha & Rishab Garg, The Problem of Undertrials, Legally Services India, http://www.legalservicesindia.com/article/1280/The-Problems-of-Undertrials.html.
14. Rajiv Gandhi assassination case: SC asked TN Governor to consider Peraivalan's mercy plea, The Hindu (September 6, 2018), https://www.thehindu.com/news/national/demand-for-release-of-rajiv-gandhi-assasination-case-convicts-a-timeline/article24908799.ece
15. Different Presidents, different decisions: The tale of mercy petitions in India, News Laundry (Jun. 26, 2017), https://www.newslaundry.com/2017/06/26/different-presidents-different-decisions-the-tale-of-mercy-petitions- in-india.
16. Ajay Kumar Paul v. Union of India & Ors, Civil Writ Jurisdiction Case No.14567 of 2017.
17. Id.
18. Margaret Love, COVID-19: State-by-state resources on how to use the pardon power, Collateral Consequences Resource Center (Mar. 24, 2020), https://ccresourcecenter.org/2020/03/24/covid-19-state-by-state-resources-on- how-to-use-the-pardon-power/.
19. Cramped prisons: On need for decongestion, The Hindu (Nov. 2, 2019, 00:12 AM), https://www.thehindu.com/opinion/editorial/cramped-prisons/article29857254.ece.
20. Thomas Hewson et al., Effects of the COVID-19 pandemic on the mental health of prisoners, National Center for Biotechnology Information, 7(7) (Jun. 20, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7302764/.
21. Chaitanya Mallapur, COVID-19: Overcrowded Jails to Release Prisoners on Parole, But This May Just Kick the Can, IndiaSpend (Mar. 25, 2020), https://www.indiaspend.com/covid-19-overcrowded-jails-to-release-prisoners-on-parole-but-this-may-just-kick- the-can/.
22. Remand Accused to Custody only if tested negative for COVID-19: Rajasthan HC Orders After 128 Prisoners Turn Corona Positive, Live Law (May. 17 2020, 4: 32 PM), https://www.livelaw.in/top-stories/rajasthan-hc-orders-after-55-prisoners-turn-corona-positive-156909?infinitescroll=1
23. Constitutes three-member committee to look into aspects of jail reforms, The Outlook (Sep. 25, 2018), https://www.outlookindia.com/newsscroll/sc-constitutes-threemember-committee-to-look-into-aspects-of-jail- reforms/1390442.
24. Injustice In The Courts: Four Indian Laws That Should Have Never Existed, Amnesty International India (May 6, 2020), https://amnesty.org.in/injustice-in-the-courts-four-indian-laws-that-should-have-never-existed/.
25. The Constitution of India, 1950, Professional Book Publishers, art 21 (2019).
26. The International Economic, Social and Cultural Right Covenant, OHCHR, art 12 (1976).
27. UN Standard Minimum Rule for the treatment of prisoners, OHCHR (1955).
28. International Covenant on Civil and Political Rights, OHCHR, art 6 (1976).
29. International Covenant on Civil and Political Rights, OHCHR, art 7 (1976).
30. Pandemic Behind Bars, International The News, https://www.thenews.com.pk/print/759721-pandemic-behind-bars
31. Kathy Gannon, COVID-19 runs unchecked in Pakistan's overcrowded prisons, AP News (Dec. 14, 2020), https://apnews.com/article/pakistan-prisons-islamabad-coronavirus-pandemic-prison-overcrowding-47cd61d890b4a6d613cdd461f71e3686.
32. Id.
33. Criminal Procedure Code 1898, Punjab Constabulary, Section 401 (1997).
34. The Constitution of Islamic Republic of Pakistan 1973, Pakistan Publishing House, Article 45 (1972).
35. Preventing and controlling outbreaks of COVID-19 in prisons and places of detention, GOV.UK (Dec. 23 2020), https://www.gov.uk/government/publications/covid-19-prisons-and-other-prescribed-places-of-detention-guidance/covid-19-prisons-and-other-prescribed-places-of-detention-guidance.
36. Jamei Grierson et. al., Fears over coronavirus risk in prisons as first UK inmate case confirmed,The Gurdian (Mar. 21 2020, 14: 58 GMT), https://www.theguardian.com/world/2020/mar/18/first-uk-prisoner-with-covid-19-confirmed-at-strangeways-manchester.
37. Riot in Colombia prison leaves 23 dead: government, AFP (Mar. 22, 2020), https://www.msn.com/en-xl/latinamerica/latinamerica-top-stories/riot-in-colombia-prison-leaves-23-dead-government/ar-BB11xSdU.
38. Prison riots break out across Italy leaving six dead, as inmates protest coronavirus restrictions, The Week (Mar. 9, 2020, 23:12), https://www.theweek.in/news/world/2020/03/09/prison-riots-break-out-across-italy-leaving-six-dead-as-inmates-protest-coronavirus-restrictions.html.
39. Guthrie JA et al, Influenza control can be achieved in a custodial setting: pandemic (H1N1) 2009 and 2011 in an Australian prison, 126 Royal Society for Public Health, 1032–1037 (2012).

Written By:

1. Aarchie Chaturvedi - 2nd Year NUSRL, Ranchi &
2. Vikarn Kumar Verma - 2nd Year NUSRL, Ranchi