Pardoning Power of President and Governor

In 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.

About Pardoning Power

• Power of Pardons under Articles 73 and 161 of the Constitution is different from judicial power as the governor or the President can grant a pardon or reduce the sentence of the court even if a minimum is prescribed.

Constitutional Provisions

• Pardoning Power of President of India: Article 72:
  • The President 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:
    • 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.
  • Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.
• Pardoning Power of Governor: Article 161:
  • 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.

Difference between the Pardoning Powers of the President and the 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:
  • Court Martial: 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.
  • Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Process of Granting Pardon in India

• Mercy petition: The process starts with filing a mercy petition with the President under Article 72 of the Constitution.
• Ministry of Home Affairs: Such a petition is then sent to the Ministry of Home Affairs in the Central Government for consideration.
• State Government: The above-mentioned petition is discussed by the Home Ministry in consultation with the concerned State Government.
• President: After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President.

Pardoning Power under Judicial Review

• In Maru Ram v Union of India, the Constitutional Bench of the Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own and that the advice of the Government binds the head of the Republic.
• Kehar Singh v Union of India: It held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusive of administrative nature is not justiciable.
• Swaran Singh v State of U.P: The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

Power of Pardoning In Various Countries

• British: The modern practice of pardoning finds its origin in the British system in which it was a Royal Prerogative of the King to forgive.
  • In the UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial advice.
• The American Constitution gives the President the power to grant reprieves or pardons for offences against the USA, except in case of impeachment.
  • However, this power is available only in case of violation of Federal law and pardon in the case of violation of a State law has to come from the Governor of the State concerned.
• Canada: pardons are considered by the National Parole Board under the Criminal Records Act.

Source: TH