The President of India is the constitutional head of the state and is also considered the first citizen of India. The President comes in the first position in the order of precedence. The constitutional office of the President is vested with wide-ranging Executive powers, legislative powers, financial powers, military powers, emergency powers, judicial powers, diplomatic powers, veto power, authority to issue ordinances and pardoning power.
Article 52 of the Indian constitution provides that ‘There shall be a President of India’. Article 72 of the Constitution permits the President of India to grant pardons etc and to suspend remit or commute sentences. The pardoning power(or clemency powers) of the President of India extends to –
- When the punishment is pronounced by Court Martial;
- When the sentence is awarded for committing an offense against a central law; 3. Sentence of death.
Nothing in this article shall apply against the pardoning power exercised by the state Governor.
This pardoning capacity of the President is separate from the power that is exercised by the judiciary. The power in this respect accorded to the President is the executive power. Hence, the President does not act in the capacity of the court.
The President cannot practice this power without the concurrence of the cabinet and hence, the decision is not an independent say of the President. The apex court has also held the same view on multiple occasions that the President’s decision on mercy pleas is based on the cabinet’s nod.
The purpose of vesting pardoning power on the President is because it helps in correction of any sort of errors being committed by the judiciary and, allotting the President with autonomy to protect convicts from brutal punishments.
The pardoning power of the President comprises the following powers
- Pardon- It wholly acquits the convict from the conviction and the sentence. The person gets absolved of all the punishment, sentence and qualifications. Thus in effect, it is complete relief for the convict.
- Commutation- It implies replacing one form of punishment with a lighter one. The person gets awarded a sentence of lesser magnitude and hence a form of relief. For example simple imprisonment is announced in place of rigorous punishment.
- Remission – The period of the sentence is reduced without any change of character. For example- simple imprisonment of 3 years to that of 2 years.
- Respite- This is granted in case of a special fact and thereby, the sentence is decreased. For example, in case the convict is specially abled.
- Reprieve- It simply means staying implied on the execution for some time. It gives a window to the convict to appeal further.
Difference between the Pardoning power of the President and the Governor
Article 161 of the Indian Constitution incorporates a provision for the pardoning power of the constitutional office of the governor. The Governor in the same way as that of the President can award pardon, respite, reprieve, remission, commute and suspend any offense committed against state law.
However there are some critical differences between the pardoning power of the President and the Governor –
- The governor cannot grant pardon in cases of court martial unlike that of the President.
- The governor has no power to pardon death sentences while the president can do so. The governor can nevertheless suspend, remit or commute it.
Hence, the above are some of the fundamental dissimilarities between the clemency powers of the President and Governor.
The Supreme Court gave certain provisions regarding the pardoning power of the President 1. The petitioner cannot ask for an oral hearing as a matter of right.
- The President can take renewed cognizance of the case.
- The President can use the gardening power in discussions with the cabinet. 4. The President shall not be obliged to give justification for his decision. 5. The pardon can be given even when there is some error in judgment. 6. No explicit guidelines are required by the court
- The presidential authority of granting pardons is saved from judicial review unless there is a decision that is arbitrary, irrational, or discriminatory.
- If a petition is denied, then a stay can be obtained subsequently.
What is the process of getting pardoned?
The process commences after filing a petition for pardon with the President of India. After that, it is sent to the Ministry of Home Affairs(MHA) for further assessment. The petition after that is discussed by the Home Ministry in consultation with the concerned State Government. Finally, the Ministry of Home sends a final recommendation to the President.
