Pardoning Power of President ~ UPSC Polity Notes

Power to Grant Pardons Clemency Power (Article 72):

Article 72 confers power on the President “to grant pardons, reprieves, respite or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence in the following cases.

In all cases where the punishment or sentence is by a Court Martial
In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends
In all cases where the sentence is a sentence of death”.

The power conferred on the President, however, does not affect the power conferred by any law on any officer of the Armed Forces of the Union suspend, remit, or commute a sentence passed by Court Martial, and also the power exercisable by the Governor of the State under any law, for the time being in force, to suspend, remit or commute a sentence of death.” However, the power conferred under Article 72 is a Constitutional power and is absolute and cannot be fettered by any statutory provision such as Sections 432, 433 and 433A of the Code of Criminal Procedure, 1974.

The pardoning power of the President is independent of the Judiciary; it is an executive power. But the President, while exercising this power, does not sit as a court of appeal. The object of conferring this power on the President is two-fold: (a) to keep the door open for correcting any judicial errors in the operation of law; and (b) to afford relief from a sentence, which the President regards as unduly harsh.

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 a lesser originally awarded
Respite: It denotes awarding due to some special fact, such as the physical sentence in place of one 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.

Process of granting pardon in India:

The process starts with filing a mercy petition with the President under Article 72 of the Constitution.
Such a petition is then sent to the Ministry of Home Affairs in the Central Government for consideration.
The abovementioned petition is 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.

Judicial Review

In Epuru Sudhakar case, Supreme Court laid down that judicial review under Art. 72 and 161 is available on following grounds:
Order has been passed without application of mind.
Order is malafide.
Order has been passed on extraneous or wholly irrelevant considerations. d) Order suffers from arbitrariness.

President’s discretion while Granting Pardon

Power to pardon vested in the President under Article 72 shall not be exercised independently without the aid and advice of Home Minister.
In the case of Maru Ram v. Union of India, Supreme Court held that under Article 72, the President cannot take an independent decision or direct release of it cannot refuse, release on his own choice. This has been done to avoid any decision made on arbitrary grounds or on some partial grounds of religion caste, colour or political loyalty.

Pardoning Power Of Governor

Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.

The Article deals with the power of the Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases. The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends. Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive power of the State extends.

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 –

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.

The SC noted that in the case of Pyare Lal, that Governor can grant pardon in case of death sentence.

Section 433: The appropriate Government may, without the consent of the person sentenced commute

a sentence of death, for any other punishment provided by the Indian Penal Code:
a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine.
a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or for fine.
a sentence of simple imprisonment, for fine.

Section 433 A: Restriction on the power of remission and commutation in certain cases.

where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

State Government to Consult the Centre: Section 435 of CrPC states that powers of state government to suspend, remit or commute a sentence must be done in consultation with the central government if

The case was investigated by Central Bureau of Investigation (CBI) or
The case was investigated by any other agency empowered to make investigation into an offence under any Central Act.
The offence involved misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
The offence was committed by a person in the service of the Central Government while acting in the discharge of his official duty.

Article 161 overrides Section 433A of CrPC- Supreme Court has held that powers of Governor under Article (161) to pardon override the restrictions imposed under Section 433-A of the Criminal Procedure Code even if the prisoner has not undergone 14 years or more of actual imprisonment. Section 433-A of CrPC does not in any way affect the power conferred to Governor to grant pardon under 161 of the Constitution.

SC Judgements:

State sending government’s recommendation on remission: SC held that there is no constitutional provision for Governor to refer a recommendation made by State Cabinet to President.

On Centre’s Plea on “appropriate government: SC rejected Centre’s argument which stated that “appropriate government” to decide on remission of sentence in matters to which executive power of Union extends is Union Government. Union Government’s power will take precedence only if “executive power had been expressly conferred on the Union under the Constitution or the law made by the Parliament, failing which the executive power of the State remained intact”.

Governor’s Power under Article 161 not immune from Judicial Review: The judgment pointed out that the Governor’s power under Article 161 to grant pardons, reprieves, respites or remissions of punishment, is subject to judicial review. The Court also stated that non-exercise of the power under Article 161 is not immune from judicial review.