Pardoning is an act of kindness aimed at reducing the punishment for an offense under the law and restoring the lost rights and privileges resulting from that offense. The Indian Constitution, through Article 72, empowers the President to grant pardons, while Article 161 grants the Governor the authority to pardon sentences, with some exceptions.
Pardons can be given to individuals convicted of any offense against the law or sentenced by a military court, as well as for death sentences. The purpose of the pardoning power is to correct potential judicial errors since no human system of justice is entirely free from imperfections.
The President’s pardoning power encompasses various aspects:
- Pardon: This eliminates both the sentence and conviction, fully absolving the convict from all penalties, punishments, and disqualifications.
- Commutation: This refers to substituting a severe punishment with a lighter one. For example, a death sentence may be commuted to rigorous imprisonment, and then further commuted to simple imprisonment.
- Remission: This involves reducing the sentence’s duration without altering its nature. For instance, a rigorous imprisonment sentence of two years may be remitted to one year.
- Respite: This entails awarding a lesser sentence instead of the original one due to specific circumstances, such as a convict’s physical disability or a female offender’s pregnancy.
- Reprieve: This grants a temporary stay of the execution of a sentence, particularly a death sentence, to provide the convict with time to seek pardon or commutation from the President.
- The process begins with Rashtrapati Bhavan forwarding the mercy plea to the Home Ministry, seeking the Cabinet’s advice. Subsequently, the Ministry sends the plea to the respective state government for their input.
- Based on the state government’s reply, the Cabinet formulates its advice on behalf of the Council of Ministers.
- Although the President is bound by the Cabinet’s advice, Article 74 (1) empowers the President to return it once for reconsideration.
- However, if the Council of Ministers maintains its original decision and rejects any changes, the President must accept and abide by their decision without further recourse.
Limitations on President for Exercising Pardoning Powers
- The President’s power of pardon is not exercised independently; rather, the President is required to act on the advice of the government.
- The Supreme Court has ruled in various cases that the President must consider the advice of the Council of Ministers while deciding on mercy pleas.
- Notable cases include Maru Ram vs. Union of India in 1980 and Dhananjoy Chatterjee vs. State of West Bengal in 1994.
Differences between the pardoning powers of the President and the Governor include:
Article 161 grants the Governor the authority to pardon sentences, with some exceptions.
- Court martial: The President’s power to grant pardon extends to cases where the punishment or sentence is given by a Court Martial, but Article 161 does not grant the Governor such authority.
- Death sentence: The President can grant a pardon in all cases where the sentence is death, but the Governor’s pardoning power does not apply to death sentence cases. Even if state law prescribes the death penalty, only the President can grant a pardon, not the governor.
The Supreme Court has provided guidelines on the exercise of the pardoning power:
- Mandatory Central government advice: The Constitutional Bench in Maru Ram v Union of India held that the power under Article 72 must be exercised based on the Central Government’s advice, binding the head of the Republic.
- No reason required: The Supreme Court, in the Ranga Billa case, emphasized that a pardon is entirely discretionary, and there is no obligation to provide reasons for granting or rejecting it.
- Not a matter of right: The Supreme Court, in Kehar Singh v Union of India, ruled that the President’s pardon is an act of grace and cannot be claimed as a matter of right. The President’s power is exclusively administrative and not justiciable.
- Limited judicial review: Pardoning powers under Articles 72 and 161 are subject to judicial review. In Epuru Sudhakar vs. Govt. Of A.P., the Supreme Court held that it allows limited review of clemency powers, and the granting of clemency can be challenged based on various grounds, such as lack of consideration or arbitrariness.
The power to grant pardons is based on considerations of public good and welfare. It can be instrumental in saving innocent individuals from wrongful punishment or addressing issues of prison discipline by motivating convicts to behave better while in incarceration.