pardoning power of president in india


Context: Recently, US President Donald Trump exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor

What is the extent of the US President’s power to pardon?

  • Constitutional right: The President of the US has the constitutional right to pardon or commute sentences related to federal crimes.
  • No restriction: The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
  • Discretionary power: Clemency is a broad executive power, and is discretionary. The President is not answerable for his pardons, and does not have to provide a reason for issuing one.

What are the limitations?

  • Article II, Section 2 of the US Constitution says all Presidents shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
  • The power only applies to federal crimes and not state crimes.
  • Those pardoned by the President can still be tried under the laws of individual states.

What is the frequency of usage of pardoning power during different Presidents?

  • In 2017, Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was found guilty of being in contempt of court for ignoring a federal judge’s order to stop arresting immigrants solely on the suspicion that they were residing in the US illegally.
  • In four years, Trump has granted pardons to 29 people (including Flynn) and 16 commutations.
  • President Barack Obama had, during his eight-year tenure, issued 212 pardons and 1,715 commutations.
  • The only other President who can be compared with Trump for infrequent use of the power is George H W Bush, who granted 77 clemency requests during his one-term tenure.
  • The highest number of clemency grants by a US President (3,796) came during Franklin D Roosevelt’s 12-year tenure, which coincided with World War II.

How Indian President pardons?

  • Not discretionary: 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: 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 161: the Governor too has pardoning powers, but these do not extend to death sentences.
  • Executive power with defined procedure: The President cannot exercise his power of pardon independent of the government. The mercy plea is forwarded to the Home Ministry, seeking the Cabinet’s advice. The Ministry forwards this to the concerned state government based on the reply, it formulates its advice on behalf of the Council of Ministers.
  • Final decision making: Article 74(1) empowers President to return cabinet’s advice for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.
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