 GENERAL AMNESTY AND THE CONSTITUTIONAL MANDATE

Does the President or the Governor have the power to declare a General Amnesty in the
exercise of their powers under Articles 72 and 161 respectively? An amnesty is an act of
pardon by which crimes against the Government in times of war up to a certain date are so
obliterated that they can never be brought into charge.80 An important difference between
amnesty and pardon is that the former is usually granted by the Parliament, or the Legislature;
and to whole classes, before trial. Amnesty is the abolition or oblivion of the offence; pardon
is its forgiveness.
The question has not come up in issue before the Court yet, but is nevertheless an important
one to answer since it shares an inherent link with the nature of the power of pardon, and
there have been several observations made by the Court with respect to the same. The closest
any Court in India has come to this issue was the decision in The Deputy Inspector General
of Police v. D. Rajaram and others1 , in which a Special Bench of the Andhra Pradesh High
Court was called upon to decide the effect of a general amnesty granted by the Government
of Andhra Pradesh to all prisoners convicted for crimes committed in Andhra Pradesh. It was
argued by the beneficiaries of the amnesty that the proclamation issued by the Government
would have the effect of absolving them from their guilt and therefore their consequential
dismissal from service would also deemed to have been revoked. Although this argument was
accepted by a Single Judge Bench of the High Court, it failed to have any impact on the
Special Bench which decided the matter in appeal. The bench, distinguishing between
remission of a sentence and a pardon, held that
"Even though the term ‘general amnesty’ was used, in effect, the intention of the Government
was to merely remit the unexpired portions of the sentence and not to issue full pardons to the
prisoners."
This decision was reached after examination of several American authorities to the contrary
on the point, and distinguishing the case on facts. However, Regardless of the American
position2, it is clear that the President of India cannot be deemed to have the power to declare
a general amnesty. As has already been argued, the President can exercise his power only
after the person has been convicted, and that too, to pardon the punishment imposed, without

1
AIR 1960 A.P. 259.
2
Power to grant general Amnesty has been vested with the President of the USA

1
affecting the guilt and the conviction.
 RESCIND OR CANCEL AN ORDER OF PARDON

This is an important issue for the consideration. As the Constitution of India bestows the
power to pardon upon the executive heads it remains silent when it comes to the revocation or
cancellation of the pardon. At present the constitution of India doesn't provides any provision
for the cancellation of pardon. The reason perhaps is, said power has been designed to use
upon due consideration of many factors. Hence its presumed that the decision will be taken
with due diligence. There doesn't require any cancellation procedure.
However, recourse can be found in other statutes. Amongst which, Section 14 and Section 21
of the General Clauses Act, 18973, in appropriate cases.
 Section 14 deals with Powers conferred to be exercisable from time to time.
(1) Where, by any Central Act or Regulation made after the commencement of this
Act, any power is conferred then unless a different intention appears that power may
be exercised from time to time as occasion requires.
(2) This section applies also to all Central Acts and Regulations made on or after the
fourteenth day of January, 1887.
 Section 21- Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws-
1) Where, by any Central Act or Regulation, a power to issue notifications orders,
rules or bye-laws is conferred, then that power includes a power, exercisable in the
like manner and subject to the like sanction and conditions (if any), to add to, amend,
vary or rescind any notifications, orders, rules or bye-laws so issued.
The aforesaid rule of interpretation as embodied in Section 14 and Section 21 of the General
Clauses Act, 1897, has been applied to the Constitution of India in Sampat Prakash v. State
of J & K4. Wherein the Apex Court held that,
“This provision is clearly a rule of interpretation which has been made applicable to the
Constitution in the same manner as it applied to any Central Act or Regulation. On the face of
it, the submission that Section 21 cannot be applied to the interpretation of the Constitution
will lead to anomalies which can only be avoided by holding that the rule laid down in this
section is fully applicable to all provisions of the Constitution.”

3
Act no. 10 of 1897
4
1970 SC 1118

2
Along with this, in S.V.G. Iyengar v. State of Mysore5 the Apex Court held that, "Section 14
and Section 21 of General Clauses Act, 1897, by virtue of Article 3676 of Constitution
apply to exercise of powers under the Constitution as well. In furtherance to this, the Court
observes that, “It is clear from the proviso to Article 309 that the rules which shall be
effective until the appropriate Legislature makes a law are not only the rules made for the
first time under that provision but include also those which are made from time to time in the
exercise of power conferred by S. 14 of the General Clauses Act, 1897 and also those rules as
modified, amended or varied in the exercise of the power conferred by Sec. 21 of the General
Clauses Act.”
Therefore, in case of exercise of pardoning power, if subsequently it comes to the knowledge
of the President or the Governor, i.e., the Central or State Government, that pardon has been
obtained on the basis of a manifest mistake, or patent misrepresentation or fraud, the same
can be rescinded and cancelled. This has another statutory basis of Section 432 of the Code of
Criminal Procedure, 1973, which lays down the consequence for non fulfillment of any
condition on which remission has been granted. Section 432 (3) says, If any condition on
which a sentence has been suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government may, cancel the suspension or
remission, and thereupon the person in whose favour the sentence has been suspended or
remitted may, if at large, be arrested by any police officer, without warrant and remanded to
undergo the unexpired portion of the sentence.

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5
AIR 1961 Mysore 37
6
Interpretation.