Pardon Power (Article 72 & 161) – UPSC Prelims

Indian President and Governors are empowered with the power to pardon under Article 72 / 161 of the Indian Constitution.
Article 72: Article 72 says that the President shall have the power to grant pardons, reprieves, remit or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
  • in all cases where the punishment or sentence by a court martial;
  • in all cases where the punishment or sentence 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.
Different Pardoning Powers:
  • Commutation- Commutation means substitution of one form of punishment with a lighter form. For example Rigorous imprisonment may be commuted to simple imprisonment.
  • Pardon –A Pardon removes both the sentence and the conviction and completely absolves the convict from all the sentences, punishments and disqualifications.
  • Reprieve – Reprieve 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.
  • Respite – Respite denotes awarding a lesser sentence in place of one originally awarded due to some special facts such as the physical disability of convict or the pregnancy of a woman offender.
  • Remissions –  Remission means the reduction of the amount of sentence without changing its character, for example, a sentence of 1 year may be remitted to 6 months. In other words, it reduces the period of sentence, but the character of punishment remains same.
  • 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.
  • 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.
  • 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.
The pardoning power of President is wider than the governor and it 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 President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.
US President’s Power:
  • USA President power of pardon is almost unrestrained.
  • The President of the USA has the constitutional right to pardon or commute sentences related to federal crimes.
  • President is not answerable for his pardons, and does not have to provide a reason for issuing one.
  • 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.
  • Why in news? Recently, the President of the United States of America (USA) has exercised his powers under the constitution to pardon his former National Security Advisor.
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