Pardoning Power of the President- UPSC Current Affairs

Why in the News?

Recently, the Union Government claimed that the President and not the Tamil Nadu Governor has exclusive power to decide Rajiv Gandhi's assassination convict A.G. Perarivalan's plea for pardon.

Probable Question

Explain the President's pardoning powers and analyse how the President's pardoning power is broader than the Governor's pardoning power.

About Clemency Power

• If the Supreme Court turns down the appeal against capital punishment, a condemned prisoner can submit a mercy petition to the President of India and the Governor of the State. 
• Under Articles 72 and 161 of the Constitution, the President and the Governor, respectively 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”. 

Also read about Judicial Reforms in this detailed article.

The Reason Behind Granting Clemency Power

• It functions as the final safeguard against the possibility of judicial error or miscarriage of justice. 
• To provide certain relief from the sentence, which the executive may feel is a little harsh.

Clemency powers of the President under Article 72

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.
• Commutation: Commutation means the substitution of one thing for another. In simple words, to replace the punishment with less severe punishment. For example, rigorous imprisonment-simple imprisonment.
• Reprieve: Reprieve means temporary suspension of the death sentence. For example - pending a proceeding for pardon or commutation.
• Respite: Respite means awarding a lesser punishment on some special grounds. For example - the Pregnancy of women offenders.
• Remission:  Remission means the reduction of the amount of a sentence without changing its character. For example, a sentence of 1 year may be remitted to 6 months.

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Difference between the Pardoning Powers of the President and the Governor

• Court Martial: The power of the President to grant pardon extends to sentences inflicted by a Court Martial, but Article 161 does not provide any such power to the Governor.
• Death Sentence: The President can grant a pardon in the death sentence while the Governor cannot. Even if a state law prescribes a death sentence, the power to grant a pardon lies with the President and not the Governor.

Supreme Court Judgements on Pardoning Power

• In Maru Ram v Union of India (1981): The Court held that the President and the Governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgement but in accordance with the aid and advice of the ministers.
• Kehar Singh v Union of India, 1988: Supreme Court reiterated its stand and held that the pardoning power by the President is an act of grace and, therefore, cannot be claimed as a matter of right.
• Epuru Sudhakar v. Government of Andhra Pradesh: The Supreme Court laid down that judicial review under Articles 72 and 161 is available on the following grounds:
  • That the order has been passed without application of mind
  • That the order is malafide; 
  • That the order suffers from arbitrariness. 
• Swaran Singh v State of U.P (1998): The Court held that, if the power exercised by the governor is arbitrary, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get the approval of the law.

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