The President – Pardoning Power of the President -6

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 where the:
1. Punishment or sentence is for an offence against a Union Law;
2. Punishment or sentence is by a court martial (military court); and
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; and, (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.
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.
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.
The Constitution of India has provided for a parliamentary form of government. Consequently, the President has been made only a nominal executive; the real executive being the council of ministers headed by the prime minister. In other words, the President has to exercise his powers and functions with the aid and advise of the council of ministers headed by the prime minister.
In estimating the constitutional position of the President, particular reference has to be made to the provisions of Articles 53, 74 and 75. These are:
1. The executive power of the Union shall be vested in President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 53).
2. There shall be a council of ministers with the Prime Minister at the head to aid and advise the President who ‘shall’, in the exercise of his functions, act in accordance with such advice (Article 74).
3. The council of ministers shall be collectively responsible to the Lok Sabha (Article 75). This provision is the foundation of the parliamentary system of government.
The 42nd Constitutional Amendment Act of 1976 (enacted by the Indira Gandhi Government) made the President bound by the advice of the council of ministers headed by the prime minister16. The 44th Constitutional Amendment Act of 1978 (enacted by the Janata Party Government headed by Morarji Desai) authorised the President to require the council of ministers to reconsider such advice either generally or otherwise. However, he ‘shall’ act in accordance with the advice tendered after such reconsideration. In other words, the President may return a matter once for reconsideration of his ministers, but the reconsidered advice shall be binding.
Though the President has no constitutional discretion, he has some situational discretion. In other words, the President can act on his discretion (that is, without the advice of the ministers) under the following situations:
(i) Appointment of Prime Minister when no party has a clear majority in the Lok Sabha or when the Prime Minister in office dies suddenly and there is no obvious successor.
(ii) Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha.
(iii) Dissolution of the Lok Sabha if the council of ministers has lost its majority.