Pardoning Power Of the Presidents of India and United States

Abstract:  US President Donald Trump has exercised his powers under the Constitution to pardon Michael Flynn, who was his former National Security Advisor.

 

Introduction:  The US President Donald Trump has exercised his pardoning power to pardon his former national security adviser Michael Flynn, who had pleaded guilty to lying to the FBI during an investigation into Russian meddling in the 2016 presidential election. It is the highest-profile pardon issued by the president since he took office.

 

Pardon in the United States

The President of the US has the constitutional right to pardon or commute sentences related to federal crimes. The US Supreme Court has held that this power is granted without limit and cannot be restricted by Congress.

Clemency is a broad executive power, and is discretionary, that 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.

Section 2 under Article II, for instance,  of the US Constitution says that all Presidents shall have Power to grant Reprieves and Pardons for Offenses 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.

 

Pardon in India

 

Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases, in which, the:

 

1. Punishment or sentence is for an offence against a Union Law.

2. Punishment or sentence is by a court martial (military court)

3. Sentence is a sentence of death.

 

The pardoning power of the President is independent of the Judiciary. It is an executive power. But, the President while exercising this power, does not sit as a court of appeal. The object of conferring this power on the President is two-fold:

 

(a) To keep the door open for correcting any judicial errors in the operation of law.

(b) To afford relief from a sentence, which the President regards as unduly harsh.

 

The pardoning power of the President includes the following:

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

disqualifications.

2. 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.

3. 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.

4. 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.

5. 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.

 

Governor's Power of Pardon

Under Article 161 of the Constitution, the governor of a state also possesses the pardoning power. Hence, the governor can also grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against a state law.

But, the pardoning power of the governor differs from that of the President in following two respects:

1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.

2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor.

However, the governor can suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remission and commutation of death sentence.

 

Power of the Supreme Court

The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles:

1. The petitioner for mercy has no right to an oral hearing by the President.

2. The President can examine the evidence afresh and take a view different from the view taken by the court.

3. The power is to be exercised by the President on the advice of the union cabinet.

4. The President is not bound to give reasons for his order.

5. The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.

6. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.

7. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory.

8. Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition.

 

Conclusion & Way forward

When considering the process of the power of pardon, we should be mindful of four facts about it, that are —

1. Clemency is not a door which the President may open to let misplaced mercy through.

2. Pardon is not a gift the President may lavish on the criminal.

3. Mercy, when prayed for by one sentenced to death, is not just about an individual’s scream for life against its judicial extinction, but part of humanity’s journey towards a higher condition under law.

4. Article 72 is not about the law, it is about the sovereign’s overview of the human situation involved in capital crime, that sees in it that which the law cannot see or evaluate, only the nation’s anointed guardian can and then again, not to saturate the law’s appetites, but the thirsts of society’s human sensibilities.

These facts are so important and foundational that they acquire the status of what may be called ‘truths.’  Perhaps we can call them the Four Noble Truths, plagiarising the Buddha, including they are about an order of human behaviour in which the sovereign is one step ahead of society on the civilisational incline.