|Demand of the question
Introduction. Contextual introduction.
Body. Discuss pardoning powers of the President. Explain how the president’s pardoning powers are different from the Governor’s pardoning power?
Conclusion. Way forward.
Pardoning is an act of kindness that reduces the punishment conferred under the law for the offence and restores the rights and privileges lost on account of the offence. Indian Constitution under Article 72 empowers the President to grant pardons and Article 161 grants powers to the governor to pardon the sentence except in a few cases. It can be granted to individuals who have been convicted of any offence against a law or sentenced by a court martial (military court) and for sentence of death. The object of pardoning power is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections.
Pardoning power of 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 a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple 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.
Difference between pardoning powers of president and governor: The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways:
- Court martial: The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
- Death sentence: The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases. Even if a state law prescribes the death sentence, the power to grant pardon lies with the President and not the governor.
Supreme Court guidelines on pardoning power: Supreme Court cases have laid down various norms regarding pardoning power of president as below.
- Mandatory Central government advice: In Maru Ram v Union of India, the Constitutional Bench of Supreme 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, and that the advice of the Government binds the head of the Republic.
- No reason required: The Supreme Court in Ranga Billa case observed that the term pardon itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.
- Not a matter of right: Supreme Court in Kehar Singh v Union of India held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercised by the President being exclusively of administrative nature, is not justiciable.
- Limited Judicial review: Pardoning powers under Articles 72 and 161 is subject to judicial review. In Epuru Sudhakar vs Govt. Of A.P., the Supreme Court held that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:
- The order has been passed without application of mind.
- The order is malafide.
- The order has been passed on wholly irrelevant considerations.
- Relevant material has been kept out of consideration.
- The order is arbitrary.
The pardoning power is founded on consideration of public good and is to be exercised on the ground of public welfare. Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction. The hope of being pardoned itself serves as an incentive for the convict to behave himself in the prison institution and thus, helps considerably in solving the issue of prison discipline.