Context: Recently, US President Donald Trump exercised his powers under the Constitution to pardon his former National Security Advisor, twice pleading guilty to lying to the FBI, with less than two months of his presidential tenure remaining.
Extent of the US President’s power to pardon:
- Constitutional mandate: The US President has the constitutional right to pardon or commute sentences related to federal crimes.
- Unlimited powers: The US Supreme Court has held that this power is granted without limit and cannot be restricted by Congress.
- Discretionary powers: Clemency is a broad executive power, and is discretionary. This means, the President is not answerable and does not have to provide a reason for issuing one. Limitations: Article II of the US Constitution says that all Presidents shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
- Also, the power only applies to federal crimes and not state crimes and those pardoned by the President can still be tried under the laws of individual states.
Pardoning powers of Indian President:
- Act on the advice of the Cabinet: Unlike the US President, whose powers to grant pardons are almost unlimited, the President of India has to act on the advice of the Cabinet.
- The President cannot exercise his power of pardon independent of the government.
- Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice.
- In several cases, the Supreme Court of India has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas.
- These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
- Article 72 of the Indian Constitution: The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.
- Article 74(1): Although the President is bound by the Cabinet’s advice, this article empowers the President to return it for reconsideration once.
- If the Council of Ministers decides against any change, the President has no option but to accept it.
The pardoning power of the President includes the following:
- Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
- Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment.
- Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
- Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
- Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
Comparing Pardoning Powers of President and Governor
President (Article 72)
Governor (Article 161)
- He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a Central law.
- He can pardon, reprieve, respite, remit, suspend or commute a death sentence.
He is the only authority to pardon a death sentence.
He can grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial (military court).
- He can pardon, reprieve, respite, remit, suspend or commute the punishment or sentence of any person convicted of any offence against a state law.
- He cannot pardon a death sentence. Even if a state law prescribes for the death sentence, the power to grant pardon lies with the President and not the governor. But, the governor can suspend, remit or commute a death sentence.
- He does not possess any such power.