President’s Power to Pardon: A Comparative Analysis(India and USA)

Context

With less than two months of his tenure remaining, US President Donald Trump on Wednesday exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor, who had twice pleaded guilty to lying to the FBI.

What is Pardon?

pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.

Pardons can be granted in many countries 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. In some jurisdictions of some nations, accepting a pardon may implicitly constitute an admission of guilt; the offer is refused in some cases. Cases of wrongful conviction are in recent times more often dealt with by appeal rather than by pardon; however, a pardon is sometimes offered when innocence is undisputed in order to avoid the costs that are associated with a retrial. Clemency plays a critical role when capital punishment is applied.

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. Pardons can also be a source of controversy. In extreme cases, some pardons may be seen as acts of corruption by officials in the form of granting effective immunity as political favors.

Pardoning Power of US President

In the United States, the pardon power for offenses against the United States is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”.

The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.

The pardon power of the President applies only to convictions under federal law. Additionally, the power extends to military court-martial cases, as well as convictions in the Superior Court of the District of Columbia.

Almost all pardon petitions are addressed to the President, who grants or denies the request. In some cases, the President will, of his own accord, issue a pardon. Typically, applications for pardons are referred for review and non-binding recommendation by the Office of the Pardon Attorney, an official of the United States Department of Justice.

Pardoning Power of President of 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.

The Constitution of India vests sovereign power in the president and governors. The governance in the centre and states is carried out in the name of the president and governor respectively. The president is empowered with the power to pardon under Article 72 of the Indian Constitution. 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. The meaning of these terms is as follows:

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.

  1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  2. 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.
  3. 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.
  4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Article 72 reads:

(1) The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence-

(a) in all cases where the punishment or sentence is by a court martial;

(b) 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;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub- clause (a) of clause (1) shall alter the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

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 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.

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.

However, 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 Union Territories are deferred to the President.

Both the President and Governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character. It is therefore subject to Judicial Review as held by the Supreme Court of India in the case of Maru Ram v. Union of India [1980] INSC 213, 1981 (1) SCC 107, Supreme Court. It was subsequently confirmed by Kehar Singh v. Union of India [1988] INSC 370, 1989(1) SCC 204, Supreme Court. In the case of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [2006] INSC 638, Supreme Court, it was held that “clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace”. The court made these observation while quashing the decision of then Governor of Andhra Pradesh Sushil Kumar Shinde in commuting the sentence of a convicted Congress activist.