Pardoning Powers Of President And Governors In India

The US President, Joe Biden, recently granted a “full and unconditional pardon” to his son, Hunter Biden. Hunter had been convicted of illegal firearm possession while using drugs and faced charges related to tax violations.

This decision has sparked debates in India about the extent of a president’s power to issue pardons.

Understanding Pardoning Power

Definition of Pardoning Power

Pardoning power is the authority given to a government official, typically a President or Governor, to offer clemency or reduce the punishment of individuals convicted of crimes.

It allows the executive branch to step in and lessen the severity of a sentence, address possible errors in justice, or consider humanitarian reasons.

This power acts as a safeguard to correct judicial mistakes, prevent excessive punishments, and promote fairness and compassion in the justice system.

Objectives Of Pardoning Power In India

The Indian Constitution provides the President and Governors with pardoning powers for two key purposes:Correcting

• Judicial Errors: To rectify mistakes made during the judicial process.
• Providing Relief: To offer leniency in cases where the punishment is considered excessively harsh or unjust.

President’s Pardoning Power In India

Constitutional Provision

Article 72 of the Indian Constitution grants the President authority to pardon, reduce, or alter sentences in certain cases. This includes:

• Punishments decided by a Court Martial.
• Sentences involving the death penalty.
• Convictions under laws enacted by the Union government.

Significance

The pardoning power ensures that the President can address potential judicial errors and act with compassion in situations that demand humanitarian consideration.

Limitations

The President does not exercise this power independently. All decisions must align with the advice of the Council of Ministers.

Types Of Clemency And Their Definitions

Pardon

A pardon granted by the President of India completely nullifies the conviction and the sentence. It absolves the individual from all punishments, sentences, and related disqualifications, effectively restoring their status as if the crime had never occurred.

Commutation

A commutation involves replacing one form of punishment with a lighter alternative. For instance, a death sentence may be reduced to rigorous imprisonment, which could then be further reduced to simple imprisonment.

Remission

A remission reduces the duration of the sentence without altering its nature. For example, a sentence of rigorous imprisonment for two years could be reduced to one year while maintaining the same type of punishment.

Respite

A respite allows for a lesser sentence than originally imposed due to specific circumstances, such as the physical disability of the convict or the pregnancy of a female offender.

Reprieve

A reprieve temporarily delays the execution of a sentence, providing the convict time to appeal for pardon or commutation to the President.

Pardoning Power Of the Governor

Article 161 of the Indian Constitution grants the Governor of a State the authority to:

• Pardon
• Reprieve
• Respite
• Remit
• Suspend
• Commute sentences

This power applies to individuals convicted under laws related to matters falling within the executive jurisdiction of the State.

Scope Of The Governor’s Pardoning Power

The Governor’s clemency powers are similar to those of the President and include the ability to:

• Pardon: Completely absolving the convict of punishment and conviction.
• Commutation: Substituting one form of punishment with a lighter one.
• Remission: Reducing the duration of the punishment without changing its nature.
• Respite: Awarding a lesser punishment due to special circumstances, such as disability or pregnancy.
• Reprieve: Temporarily delaying the execution of a sentence to allow time for clemency appeals.

Differences Between the Pardoning Powers Of The President And The Governor

Although the Governor’s powers largely mirror those of the President, key differences exist:

• Jurisdiction: The Governor’s authority is limited to matters falling under the State’s executive powers, while the President’s power extends to Union laws, court-martial cases, and death sentences.
• Death Sentences: Only the President can pardon a death sentence; the Governor does not have this power.

Significance Of Pardoning Power

• Correcting Miscarriages of Justice: Pardoning power acts as a safety net to address wrongful convictions or disproportionate sentences resulting from errors or biases in the judicial process.
• Maintaining Checks and Balances: This power provides a mechanism for the executive to check judicial decisions in rare and exceptional cases, maintaining a balance between the branches of government.
• Resolving Political Tensions: The pardoning power can help resolve politically sensitive issues, foster reconciliation, and promote social harmony by addressing grievances of marginalized groups or healing societal divisions.
• Adapting to Evolving Social Norms: Clemency reflects the changing values and ethics of society by offering relief in cases where outdated laws or penalties no longer align with modern principles of justice.

Criticism Of Pardoning Power Of The President And Governor

Potential For Abuse

• One of the major criticisms is the potential misuse of the pardoning power for political or personal benefit.
• Clemency may be granted to individuals with close ties to the executive or in exchange for political favors.
• Such practices can lead to decisions based on favoritism rather than justice, undermining the credibility of the system.

Undermining The Rule Of Law

• The pardoning power can conflict with the principle of the rule of law by overriding judicial decisions.
• This may create the perception that the executive has unchecked authority to negate the judiciary’s role.
• Public trust in the fairness and impartiality of the legal system can be eroded.

Lack of Transparency

• The process behind granting pardons often lacks transparency, with limited public accountability.
• Decisions are typically made without clear reasoning or disclosure to the public.
• This secrecy can foster doubts about the fairness and impartiality of the clemency process.

Undermining Judicial Independence

• Pardoning power can weaken the authority of the judiciary by altering or nullifying judicial sentencing decisions.
• This may reduce respect for judicial rulings and undermine the independence of the judiciary as a pillar of democracy.

Limitations Of Pardoning Power

Dependency on Government Advice

The President of India cannot independently exercise the power of pardon. This power is constitutionally bound by the advice of the Council of Ministers.

Article 74 of the Indian Constitution

Article 74 lays down the framework for the President’s functioning with regard to pardoning power:

Council of Ministers’ Role:

• The President must act on the advice of the Council of Ministers, headed by the Prime Minister, in exercising the pardoning power.
• If the President has reservations, they may request the Council to reconsider the advice. However, the President is bound to accept the revised advice.

Non-Justiciability of Advice:

The nature or content of the advice given by the Council of Ministers to the President cannot be challenged or reviewed in any court of law.

Implications Of These Limitations

• Restricted Autonomy: The President’s pardoning power is not absolute and depends entirely on the government’s decisions.
• Reduced Discretion: Although the President has a ceremonial role, actual decision-making authority lies with the Council of Ministers.
• Limited Judicial Oversight: Courts cannot question the advice tendered by the Council of Ministers, ensuring the process remains insulated from judicial intervention.

These provisions ensure that the exercise of pardoning power aligns with the principles of a parliamentary democracy but also highlight the limited discretion available to the President.

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