Article begins:
In recent news, the President of the United States (US) has exercised his constitutional right to pardon his former National Security Advisor. This action has brought into light the far-reaching pardoning powers vested in the Presidents of different countries, especially contrasting the US and India. Both these countries have distinct rules governing this power and the way it is executed. It’s crucial to understand these distinctions, the limitations that come with this power, and its broader implications.
Pardoning Power of the US President
The President of the US holds an extensive constitutional right to pardon or commute sentences related to federal crimes. This power, termed as clemency, gives the President a broad executive power that is discretionary. The President, therefore, doesn’t need to provide reasons for issuing a pardon nor answer for his pardons.
However, the power isn’t unlimited. Impeachment cases are exempt from presidential pardons. Moreover, it only applies to federal crimes, not state crimes. Thus, individuals pardoned by the President can still face trial under individual state laws. The United States Supreme Court maintains that Congress (the legislature) cannot restrict this pardon power as it’s granted without limit.
Pardoning Power of the Indian President
In contrast, the President of India operates under distinct guidelines when it comes to the power of pardoning. In accordance with Article 72 of the Indian Constitution, the President can grant pardons, reprieves, respites or remissions of punishment for any person convicted of an offense where the sentence is death. But this power comes with its own set of limitations.
The Indian President cannot exercise the pardoning power independently. The Supreme Court (SC) in India, in various cases, has ruled that the President must act on the advice of the Council of Ministers while deciding mercy pleas.
Procedure for Presidential Pardon in India
The procedure for presidential pardon in India involves multiple steps. Firstly, Rashtrapati Bhawan forwards the mercy plea to the Home Ministry seeking the Cabinet’s advice. The ministry then sends it to the corresponding state government. The ministry formulates its advice based on the state government’s reply.
Although bound by the Cabinet’s advice, Article74 (1) empowers the President to return it for reconsideration once. However, if the Council of Ministers decides against any change, the President must accept it.
Contrasting Pardoning Powers of the President and Governor in India
Article 161 of the Indian Constitution also grants the Governor pardon powers. However, the scope and limitations of the pardoning power of the President under Article 72 are broader than that of the Governor. For instance, the President can exercise this power in cases where the sentence is by a Court Martial, but the Governor isn’t endowed with any such power. Furthermore, the President can grant pardon in all cases where the sentence given is death, contrasting the Governor who doesn’t have this power in death sentence cases.
Jargons of Pardon
Understanding the pardoning power requires familiarity with some associated terminologies:
– Pardon completely absolves a convict from all sentences, punishments, and disqualifications by removing both the sentence and the conviction.
– Commutation implies substituting one form of punishment for a lighter one.
– Remission refers to reducing the period of sentence without changing its character.
– Respite means awarding a lesser sentence because of some special fact, like the convict’s physical disability or the pregnancy of a woman offender.
– Reprieve indicates a stay of the execution of a sentence for a temporary period, providing the convict time to seek pardon or commutation from the President.