Judicial Reforms

Explained: Pardoning powers of President/Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers of the President and the Governor

Mains level : Read the attached story

  • The President has commuted death sentences to life imprisonment in at least 20 cases over the past nine years, based on the recommendations received from the Ministry of Home Affairs (MHA).

Pardon

  • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense, as if the act never occurred.

Why need Pardon?

  • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
  • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
  • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

Pardoning powers in India

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
  • A similar and parallel power vests in the governors of each state under Article 161.

I. President

  1. Article 72 says that 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.
  2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
  • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Cases as specified by art. 72

  • 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.

II. Governor

  • Similarly, as per article 161: Governor of a State has 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.
  • It must be relating to a matter to which the executive power of the state extends.
  • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

Nature of the Pardoning Power

  • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
  • This has not been discussed by the constitution but is the practical truth.
  • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
  • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

Some traditions

  • It is important to note that India has a unitary legal system and there is no separate body of state law.
  • All crimes are crimes against the Union of India.
  • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
  • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.
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