Pardoning power of President and Governor
The recent case of pardoning assassins of Prime Minister Rajiv Gandhi has brought the pardoning power of the President and the governor to focus.
Compare the clemency powers of the president and governor. Can the pardoning powers of the President or Governor be subject to judicial review?
● Article 72 of the Constitution authorizes the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:
➢ Punishment or sentence for violation of a Union Law, offence by a court-martial (Military court) and the sentence of death.
➢ The objective of conferring this power on the President is to keep the door open for rectifying any judicial errors in the operation of law and to afford relief from a sentence, which the President recognises as an unduly harsh punishment.
● The pardoning power of the President includes:
➢ Pardon: Both the conviction and the sentence are completely done away with i.e. and it completely absolves the convict from all sentences, punishments and disqualifications.
➢ Commutation: It provides for the substitution of one form of punishment to a lighter one. E.g., a death sentence may be commuted to rigorous imprisonment, which in turn may be committed to a simple imprisonment
➢ Remission: It entails a reduced sentence without altering its character. E.g., a punishment of rigorous imprisonment for three years might be remitted to rigorous imprisonment for one year.
➢ Respite: It indicates 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 provides for a stay of the execution of a sentence (especially that of death) for a temporary period. It provides a window of some time for the convict to seek pardon or commutation from the President.
● Article 161 grants the governor power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence”. The governor can do so for any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
The difference between pardoning power of the President and the Governor
President- Article 72, empowers President to grant pardon
President can pardon sentences given in court-martial (military courts)
President can pardon a death sentence
Governor- Article 161, empower Governor to grant pardon
but the Governor cannot pardon in court-martial
Governor cannot pardon death sentences.
Landmark Verdicts on Pardoning Power:
Epuru Sudhakar Case (2006): The SC held that the powers of the President or Governor under Articles 72 and 161 are subject to judicial review. Their decision can be challenged on the ground that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness.
Maru Ram vs Union of India (1980): The SC court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own at his discretion. And that the advice of the Government is binding on him.
Governor can pardon even before the minimum 14 years of prison sentence: Supreme Court
Recently, the Supreme Court held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum of 14 years of the prison sentence.
Probable Question: Explain section 433A and section 432 of the Code of Criminal Procedure in light of recent supreme court judgment.
Key Points of the SC judgement:
● The court observed that the Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A.
● Section 433A mandates that a prisoner’s sentence can be remitted only after 14 years of jail while section 432 relates with power to remit or suspend sentences.
● The Supreme court in its judgement said that
➢ Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution even if the prisoner has not undergone 14 years or more of actual imprisonment.
➢ Such power can be exercised only by the Governor, though the Governor is bound to act on the aid and advice of the State Government.
Pardoning Power of the President in the USA and India
Former US President Donald Trump had exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor, who had twice pleaded guilty to lying to the FBI in November 2020.
Probable Question: Unlike the US President, whose powers to grant pardons are almost unfettered, the President of India has to act on the advice of the Cabinet. Comment.
Pardoning Power of the President in the USA:
● The US President has the constitutional right to pardon or commute sentences related to federal crimes.
● The Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
● Clemency is a broad executive power that is discretionary — meaning the President is not answerable for his pardons and does not have to provide a reason for issuing one.
➢ The President cannot issue a pardon in cases of impeachment of officials. Art II, Sec 2 of the Constitution says Presidents “shall have the power to grant reprieves and pardons for Offenses against the United States, except in Cases of Impeachment”.
➢ The power is only applicable to federal crimes and not state crimes. This means that those who have been pardoned by the President can still be tried under the laws of individual states.
Pardoning Power of the President in India:
● Under Article 72 of the 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”.
● The President cannot exercise his power of pardon independent of the government.
➢ In several cases, the SC 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.
● Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.
● Procedure: The Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.
India and the USA follow the parliamentary form of government and presidential form of government respectively, and the pardoning power of the President and USA differs according to the type of government.