Pardoning powers of President
Context:
The 12-year-old son of Shabnam, a death row convict from Uttar Pradesh’s Amroha, appealed to President Ram Nath Kovind to “forgive” his mother.
- Shabnam has exhausted most of her legal remedies, and if executed, will be the first woman in independent India to be hanged for a crime.
Why need Pardon?
- Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
- Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
- Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.
Pardoning Powers of President (Article 72)
Article 72 of the Indian Constitution deals with the pardoning powers of the President of India. When the President of India takes an action over the case of punishment or the sentence of any person convicted for an offence, it takes the form of his pardoning powers. They are of five types:
- Pardon:
When the President pardons, both the sentence and the conviction of the convict completely absolve the sentences, punishments and disqualifications
- Reprieve:
When the President uses the pardoning power of ‘Respite’, he chooses to award a lesser sentence in place of one originally awarded to the convict. For example, due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender, the President can use this power
- Remit:
When the President chooses the pardoning power of ‘Reprieve’; he stays the execution of a sentence (especially that of death) for a temporary period. By doing this, he enables the convict to have time to seek pardon or commutation from him
- Respite:
When the President chooses the pardoning power of Remit, he acts to reduce the period of the sentence but the character of the sentence remains the same. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year but the imprisonment remains rigorous
- Commute:
When the President chooses to use this pardoning power of ‘Commute; he substitutes 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 simple imprisonment.
When can the President use his Pardoning Powers?
The President can use any one of the pardoning powers in the cases mentioned above:
- When he is considering a case of punishment against a person who has committed an offence against a Union Law
- When he is considering a case of punishment where the latter is given by the court-martial or military court
- When he is considering a death sentence
Nature of the Pardoning Power
- The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
- The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
- This has not been discussed by the constitution but is the practical truth.
- Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
- But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
- The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.
Procedure:
- 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.
Reconsideration:
Although the President is bound by the Cabinet’s advice, Article74 (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.
Pardoning Power of the President in the USA vs President in India:
| President of USA | President of India |
| The President of the USA has the constitutional right to pardon or commute sentences related to federal crimes. Clemency is a broad executive power, and is discretionary which means the President is not answerable for his pardons, and does not have to provide a reason for issuing one. But there are few limitations.The USA has a Presidential system.The USA Supreme Court has held that this power is granted without limit and cannot be restricted by Congress (legislature) Limitations: All Presidents shall have power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment.Further, 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. | 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. parliamentary system of government Limitation: The President cannot exercise his power of pardon independent of the government.In several cases, the Supreme Court (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. |
Difference between Pardoning Powers of Governor and the President
| Pardoning Power of the President | Pardoning Power of the Governor |
| He can pardon a sentence of the convict given by the court-martial or the military court | Governor does not have the power to pardon the sentence inflicted by the court-martial on the convict |
| The President can also pardon the death sentence through commutation or in its entirety. | Governor cannot pardon the death sentence even if the said sentence has been prescribed under the state law. However, he can suspend, remit or commute the death sentence by using these pardoning powers. |
| His pardoning powers are granted for the cases where the convict has committed an offence against a Union law | His pardoning powers are granted for the cases where the convict has committed an offence against a state law |
Power of the Supreme Court
The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles:
1. The petitioner for mercy has no right to an oral hearing by the President.
2. The President can examine the evidence afresh and take a view different from the view taken by the court.
3. The power is to be exercised by the President on the advice of the union cabinet.
4. The President is not bound to give reasons for his order.
5. The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
6. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
7. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory.
8. Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition.
Conclusion
When considering the process of the power of pardon, we should be mindful of four facts about it, that are —
1. Clemency is not a door which the President may open to let misplaced mercy through.
2. Pardon is not a gift the President may lavish on the criminal.
3. Mercy, when prayed for by one sentenced to death, is not just about an individual’s scream for life against its judicial extinction, but part of humanity’s journey towards a higher condition under law.
4. Article 72 is not about the law, it is about the sovereign’s overview of the human situation involved in capital crime, that sees in it that which the law cannot see or evaluate, only the nation’s anointed guardian can and then again, not to saturate the law’s appetites, but the thirsts of society’s human sensibilities.
These facts are so important and foundational that they acquire the status of what may be called ‘truths.’ Perhaps we can call them the Four Noble Truths, plagiarising the Buddha, including they are about an order of human behaviour in which the sovereign is one step ahead of society on the civilisational incline.
Source: https://indianexpress.com/article/explained/explained-the-case-of-amrohas-shabnam-the-first-woman-likely-to-hanged-after-independence-7195194/
