"BNSS Impact: Rethinking Presidential/Governor Pardon Power in New Criminal Laws"

Sneh Singh,

Babasaheb Bhimrao Ambedkar University

Introduction:

The Merriam Webster dictionary defines pardon as "to excuse or forgive for a fault."[i] Pardoning or exhibiting mercy or leniency can be viewed as an act of grace or humanity, demonstrating a belief in morality, but it can also be viewed as a constitutional arrangement determining ultimate power that the public good would be ensured by inflicting less suffering.

Even the most perfect legal system cannot function without the authority to pardon. Pardon is a tool of mercy and a means of correcting severe injustices that have occurred on their own or because of the unplanned operation of criminal laws that must be addressed.

This new criminal legislation, designed to strengthen national security and protect civilians, has resulted in significant modifications to numerous parts of the legal system, including the use of presidential and governor pardon powers. This article investigates the effect of the Bharatiya Nagarik Suraksha Sanhita on the President's and Governors' discretionary powers to award pardons, reprieves, and respites in criminal cases, critically examining the consequences for justice, mercy, and national security.

Understanding the Pardon Powers:

The President and Governors' power to pardon is a constitutional prerogative designed to temper the rigors of justice with mercy. Article 72[ii] of the Constitution empowers the President to give pardons, reprieves, respites, or remissions of penalty, while Governors have comparable powers under Article 161[iii]. These powers are discretionary, allowing the administration to examine a variety of criteria, including rehabilitation, public interest, and the merits of individual cases.

The Bharatiya Nagarik Suraksha Sanhita:

The Bharatiya Nagarik Suraksha Sanhita[iv], which goes into effect in 2023, is a watershed moment in India's approach to national security and criminal justice. The Act covers offences such as blasphemy, national security, and sedition, among others, and prescribes severe penalties for infractions. While the Bharatiya Nagarik Suraksha Sanhita (hereinafter, BNSS) seeks to defend national interests and preserve public safety, it also raises concerns about the balance between security imperatives and ideals of justice and mercy, particularly the executive's use of pardon powers.

Impact on Pardoning Powers:

The passage of the Bharatiya Nagarik Suraksha Sanhita has important ramifications for the use of presidential and gubernatorial pardon powers. In cases involving offences under the BNSS framework, executive authorities may face heightened pressure to prioritize national security concerns over considerations for justice. This raises concerns about the potential curtailment of the discretionary nature of pardon powers and the infringement upon constitutional principles.

Major Differences:

The impact of pardoning powers under the BNSS and the Code of Criminal Procedure (CrPC) varies greatly depending on the nature and scope of these legal frameworks.

Bharatiya Nagarik Suraksha Sanhita:

●      The Bharatiya Nagarik Suraksha Sanhita Bill, passed in 2023, covers offences such as blasphemy, national security, sedition, and other serious risks to public safety and national integrity.

●      Offences are frequently classified as severe under the BNSS framework, posing major threats to national security. The President's[v] and Governors' pardoning powers may be influenced by national security and public safety reasons.

●      When utilizing pardon powers under the BNSS, executive authorities may be under increased pressure to choose national security reasons over justice and mercy.

●      The discretionary nature of pardon powers under the BNSS may be scrutinized more closely, and sophisticated debates may be required to ensure that national security interests are protected while upholding values of justice and fairness.

The Code of Criminal Procedure (CrPC):

●      The Criminal Procedure Code (CrPC) is a procedural law that controls how criminal procedures are conducted in India. It establishes a variety of legal procedures, including the President and Governors issuing pardons, reprieves, and respites in specified instances.

●      Pardoning powers[vi] under the Criminal Procedure Code (CrPC) are used in a broader context, embracing a wide range of criminal offences, including those not covered by the BNSS framework.

●      The Criminal Procedure Code (CrPC) establishes a more established and well-defined framework for the exercise of pardoning powers, with rules and precedents developed via judicial interpretation and practice over time.

●      While justice and mercy remain fundamental in the use of pardoning powers under the Criminal Procedure Code (CrPC), national security concerns may not have as much weight as they had under the Bharatiya Nagarik Suraksha Sanhita.

Under conclusion, the impact of pardoning powers varies between the Bharatiya Nagarik Suraksha Sanhita and the Criminal Procedure Code due to the unique type and breadth of offences covered, as well as the overriding issues of national security under the BNSS framework. While both legislative frameworks prioritize values of justice and fairness, the BNSS adds complications and considerations relating to national security imperatives to the exercise of pardoning powers.

Challenges and considerations:

The issues and considerations regarding the impact of the BNSS Act on presidential and gubernatorial pardon powers are complex and necessitate thorough examination. As India navigates this new legal terrain, a number of major issues and concerns emerge, each with its own set of complications and ramifications for executive clemency.

●      Balancing National Security Priorities with Justice and Mercy[vii]: One of the most difficult difficulties is balancing national security imperatives with concepts of justice and charity. The Bharatiya Nagarik Suraksha Sanhita prohibits blasphemy, national security, sedition, and other serious risks to public safety and national integrity. In cases involving these offences, executive authorities may face increased pressure to prioritize national security reasons over notions of justice and mercy when executing pardon power. This raises worries about potentially undermining the discretionary nature of pardoning powers and violating constitutional standards.

●      Pardon powers are discretionary in nature: Pardoning powers granted to the President and Governors are fundamentally discretionary, allowing the administration to consider criteria such as remorse, rehabilitation, and public interest. However, within the BNSS framework, the exercise of these authorities may be subject to increased scrutiny and complicated debates to ensure that national security objectives are protected while values of justice and fairness are preserved. This discretionary feature of pardon powers creates difficulties in striking a careful balance between national security imperatives and the safeguarding of basic rights.

●      Misuse or abuse of pardon power: There are worries regarding the possible misuse or abuse of pardon powers under the BNSS, especially when national security considerations are used to justify limits on individual liberty. Executive authorities must ensure that pardon powers are used wisely and in conformity with constitutional principles, without yielding to political pressure or undue influence. Improving transparency, accountability, and judicial oversight in BNSS -related matters will assist prevent misuse and ensure that pardon powers are utilized to promote justice and fairness.

●      Complexity of BNSS offences: The BNSS framework includes a wide variety of offences considered risks to national security and public safety. These offences are frequently complex and might involve sensitive topics such as religious views, political opposition, and social harmony. Navigating the legal complexity and nuances of BNSS -related matters necessitates careful thought and consideration, especially when considering the appropriate use of pardon powers. Furthermore, establishing uniformity and fairness in the administration of pardon powers across various BNSS offences poses a substantial difficulty to executive authorities.

●      Transparency, accountability and judicial oversight: Transparency, accountability, and court scrutiny in the exercise of pardon powers are critical to preserving public trust and confidence in the criminal justice system. Under the BNSS framework, executive authorities must establish clear guidelines and criteria for using pardon powers, ensuring that judgements are based on legal grounds rather than political factors. Judicial review of pardon decisions can also act as a check on executive discretion, ensuring that constitutional norms are followed.

Recommendations and Way Forward: 

To overcome these issues, policymakers must reconsider the relationship between national security imperatives and ideals of justice and mercy in the exercise of pardon powers. This may entail reviewing the scope and use of the BNSS framework to verify that it does not unreasonably limit executive clemency or violate constitutional rights. Furthermore, increasing openness, accountability, and court oversight in BNSS -related matters will assist prevent abuses and ensure that pardon powers are used wisely and in compliance with constitutional standards.

Conclusion:

The BNSS framework creates complicated issues for presidential and governor pardoning authorities, raising concerns about the balance between national security imperatives and justice and mercy. As India navigates these challenges, it is critical to maintain the discretionary nature of executive clemency while addressing national security considerations efficiently. By adhering to constitutional principles and fostering transparency and accountability, officials can strike a difficult balance between national security imperatives and the protection of fundamental rights while exercising pardon authority.

REFERENCES

[i] Pardon definition & meaning (no date) Merriam-Webster. Available at: https://www.merriam-webster.com/dictionary/pardon 

[ii]2. The constitution of India: As amended by the Jammu and Kashmir reorganization act, 2019 (34 of 2019) (W.E.F. 31-10-2019) and the Constitution (One Hundred and Third Amendment) act, 2019 (w.e.f. 14-1-2019); along with short notices (2022). New Delhi: Universal/LexisNexis.

[iii] The constitution of india: As amended by the Jammu and kashmir reorganisation act, 2019 (34 of 2019) (W.E.F. 31-10-2019) and the Constitution (One Hundred and Third Amendment) act, 2019 (w.e.f. 14-1-2019); along with short notices (2022). New Delhi: Universal/LexisNexis.

[iv] Bharatiya Nagarik Suraksha Sanhita,2023; along with short notices (2023). New Delhi: Universal/LexisNexis.

[v] Bharatiya Nagarik Suraksha Sanhita,2023; Section 473(1); along with short notices (2023). New Delhi: Universal/LexisNexis.

[vi] Code of Criminal Procedure, 1973 (Act 2 of 1974) (Universal/LexisNexis 2023)

[vii] Supra 5