Pardoning powers of President of India

Context: Recently, the U.S. President Joe Biden has granted an unconditional pardon to his son Hunter Biden who faced sentencing for federal tax and gun convictions. In this context, let us understand the pardoning powers of the President of India, and the comparison with the pardoning powers of the US President.

Historical background:

• UK: The ‘royal prerogative of mercy’ is a historic prerogative of the British monarch to grant pardons to convicted persons. This was originally used by the monarch to withdraw or provide alternatives to death sentences, however, at present it is used to grant clemency for any sentence or penalty based on ministerial advice.
• USA: In the U.S. Constitution under Article II Section 2(1) the President can grant pardon except in cases of impeachment. The U.S. President has absolute power of pardon for federal criminal offences. Such a pardon may be issued prior to the start of a legal case as well as prior to or after a conviction for a crime.
  • Once accepted, the pardon grants relief from punishment and associated disqualifications but does not erase the conviction record.
• India: Section 295 of Government of India Act 1935 provided with the Governor-General discretionary powers of suspension, remission or commutation of sentence.

Pardoning power of the President of India:

• Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:

1. Punishment or sentence is for an offence against a Union Law.
2. Punishment or sentence is by a court martial (military court).
3. Sentence is a sentence of death.

• The pardoning power of the President is independent of the Judiciary. The President, while exercising this power, does not sit as a court of appeal. The object of conferring this judicial power on the President is two-fold: 

1. to keep the door open for correcting any judicial errors in the operation of law; and,
2. to afford relief from a sentence, which the President regards as unduly harsh.

The pardoning power of the President includes the following:

1. Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
2. 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.
3. 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.
4. 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.
5. 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.

It is to be noted that under Article 161 of the Constitution, the Governor of a state also possesses the pardoning power. Hence, the governor 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 a state law. 

But the pardoning power of the Governor differs from that of the President in following two respects:

1. The President can pardon sentences inflicted by court martial (military courts) while the Governor cannot.
2. The President can pardon death sentences while the governor cannot. Even if a state law prescribes a death sentence, the power to grant pardon lies with the President and not the governor. However, the governor can 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 death sentences. 

Landmark cases:

• Maru Ram vs Union of India (1980):  Supreme Court held that the pardoning power of the President (under Article 72) and the pardoning power of the Governors (under Article 161) are not subject to judicial review in its entirety. However, they have to exercise their powers on the advice of the Central Council of Ministers (CoM) and the State Council of Ministers (CoM) respectively, and not as per their discretion, thus, there is a guided discretion involved in the exercise of these powers.
• Kehar Singh case (1988): The Supreme Court examined the pardoning power of the President 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. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
5. 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. 

• Erupu Shakdhar case (2006): The Supreme Court held that the exercise of pardoning power is subject to judicial review on the grounds of arbitrariness, mala fides or extraneous considerations.

Way Forward:

• The pardoning power has its origins during the time of absolute monarchy when there was no separation of powers between the executive and the judiciary. Critics have argued that the pardoning power in modern times has been more often used for political considerations than to correct judicial errors.
• Pardoning power today serves the functions in correcting miscarriages of justice and upholding Article 21 and mercy; however, its exercise must be carefully balanced to avoid its abuse, political interference, and the undermining of the judicial process. 
• There is a need to establish clear guidelines, enhance transparency, and strengthen accountability mechanisms to further retain the trust of people who are the source of all power in a democracy.