What are the pardoning powers of the President and how does the President exercise it? To clear all doubts, read further to know more.
Under the Indian Constitution, Article 72 empowers the President to grant pardons to persons.
The pardoning powers of the President are executive power and are independent of the Judiciary. The President while exercising all pardoning power, does not sit as a court of appeal.
Pardoning Powers of the President
The President grants pardons to persons who have been tried and convicted of any offense in all cases where the:
- Punishment or sentence is for an offense against a Union Law or the offense made under Concurrent Lists (A regards laws made under Concurrent Lists, the jurisdiction of the President shall be concurrent with that of Governor)
- Punishment or sentence is by a court martial (military court); and
- The sentence is a sentence of death
Why President is Conferred with Pardoning Power?
There are twofold reasons for conferring this power on the President:
- To keep the door open for correcting any judicial errors in the operation of law; and,
- To afford relief from a sentence, that the President regards as unduly harsh.
When President can Exercise Pardoning Power?
The power of the President under Article 72 of the Constitution to grant emission to a convict has to be exercised on the advice of the Council of Ministers (UoI vs Sriharan 2016 Case).
Process of Granting Pardon
- The process starts with filing a mercy petition with the President under Article 72.
- Such a petition is required to send to the Ministry of Home Affairs for consideration.
- The abovementioned petition was then discussed by the Home Ministry in consultation with the concerned State Government.
- After the consultation, recommendations are made by the Home Minister and then the petition is sent back to the President.
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 another of a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
Remission: It reduces the period of the sentence without changing its character e.g. a sentence of imprisonment for 1 year may be remitted to 6 months.
Respite: It means awarding a lesser sentence instead of one originally awarded due to some special fact, e.g. 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.
Difference Between Pardoning Power of President and Governor
The Constitution, under Article 161 provided that the governor of a state also possesses the pardoning power.
Hence, the governor of a state can also grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against state law.
The pardoning power of the governor differs from that of the President in the following two respects:
- The President can pardon sentences of court-martial (military courts) while the governor has no such power related to sentences of court-martial.
- The President can pardon the death sentence while the governor cannot do the same. Even if a state law prescribes a death sentence, the power to grant a pardon lies with the President and not with the governor. However, the governor has the power to suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remission and commutation of a death sentence.
Principles Laid Down by Supreme Court Related to Pardoning Powers
The Supreme Court examined the pardoning power of the President under different cases like Kehar Singh’s Case and Maru Ram’s Case, and laid down the following principles:
- The convict seeking relief has no right to insist on an oral hearing.
- No guidelines need to be laid down by the Supreme Court for the exercise of the power.
- The power is to be exercised by the President on the advice of the Central Government.
- The President can go into the merits of the case and take a different view.
- Exercise of the power by the President is not open to judicial review, except to the limited extent as indicated in Maru Ram’s case,
- President is not bound to give reasons for his order.
- The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
- Where the earlier petition for mercy has been rejected by the President, a stay cannot be obtained by filing another petition.
The Court can interfere only where the Presidential decision is wholly irrelevant to the object of Article 72 or is irrational, arbitrary, discriminatory or mala fide. The power exercised under Article 72/161 of the Constitution can be subjected to limited judicial review. This power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigate the sentence of punishment awarded and which do not, in any way wipe out the conviction.
However, the delay in deciding the mercy petitions under Articles 72 and 161 has come under heavy criticism by the Supreme Court. The Supreme Court, while taking note of the contemporary jurisprudential development with regard to delay in the execution of the death sentence, commuted the death sentence into life imprisonment.
The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition. The government is required to work in a more systematised manner to repose the confidence of the people in the institution of democracy and as such the Supreme Court suggested the government to render its advice to the President within a reasonable time so that the President is in a position to arrive at a decision at the earliest.
Article Written By: Priti Raj