Comparison between President’s Powers to Pardon in USA vs India

Context:

• Recently, the President of the United States of America (USA) exercised his powers under the constitution to pardon his former National Security Advisor.
• Unlike the USA President, whose powers to grant pardons are almost unrestrained, the President of India has to act on the advice of the Cabinet.

Comparison between USA vs India

Pardoning Power of the President in the USA:

• The President of the USA has the constitutional right to pardon or commute sentences related to federal crimes.
• Clemency is a broad executive power, and is discretionary which means the President is not answerable for his pardons and does not have to provide a reason for issuing one. But there are a few limitations.
• The USA has a Presidential system.
• The USA Supreme Court has held that this power is granted without limit and cannot be restricted by Congress (legislature).

Limitations:

• All Presidents shall have the power to grant Reprieves and Pardons for offences against the United States, except in cases of impeachment.
• Further, the power only applies to federal crimes and not state crimes.
• Those pardoned by the President can still be tried under the laws of individual states.

Pardoning Power of the President in India:

Under Article 72 (PT) of the Constitution, 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 where the sentence is a sentence of death.

Limitation:

• The President cannot exercise his power of pardon independent of the government.
• In several cases, the Supreme Court (SC) has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980 and Dhananjoy Chatterjee vs State of West Bengal in 1994.

Reconsideration:

Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Under Article 161, the Governor in India too has pardoning powers.

Difference Between Pardoning Powers of President and 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 which differs in the following two ways:

1. 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.
2. 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.

Terms for Prelims

Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.

Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.

Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.