Pardoning Powers of President and Governor means the President/governor has the authority to grant pardons to persons who have been tried and convicted of any offence in all cases. Articles 72 and 161 of the Constitution contain the law governing the grant of pardon. The pardoning power is founded on consideration of public good and is to be exercised on the grounds that public welfare, which is the legitimate object of all punishments, will be promoted just as well by a suspension of the sentences as by their execution. In this article we will discuss more about Comparing Pardoning Powers of President and Governor.

Definition - Pardoning Power of President and Governor

Pardoning Power of President (Article 72)

• The President shall have the authority to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offence –
  • in all cases where the punishment or sentence is by a Court Martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the Union's executive power extends.
  • in all cases where the sentence is a death sentence.
• The President's pardoning power is independent of the Judiciary; it is an executive power.
• The purpose of granting the President this authority is two fold:
  • to keep the door open for rectifying any judicial mistakes in the implementation of the law;
  • to afford relief from a sentence, which the President regards as unduly harsh

Pardoning Power of Governor (Article 161)

• This article addresses the Governor's authority to grant pardons, etc., as well as suspend, remit, or commute sentences in certain circumstances.
• The Governor of a State shall have the authority 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 State's executive power extends.
• Pardoning Power overrides Section 433A of The Code Of Criminal Procedure, 1973.
  • According to a recent Supreme Court decision, a state's governor has the ability to pardon criminals even before they have served a minimum of 14 years in jail.
  • Section 433-A has no influence on the President/Governor's ability to issue pardons under Articles 72 or 161 of the Constitution.

Comparison Between Pardoning Powers of President and Governor

Significance of Pardoning Power

• The pardoning power is founded on consideration of public good and is to be employed on the grounds that public welfare, which is the legitimate purpose of all penalties, will be advanced just as well by a suspension of the sentences as by their execution.
• To pardon means to absolve someone of his or her wrongdoing.
• The term "pardon" has been described as an act of grace, emanating from the power tasked with the implementation of the law, that exempts the individual on whom it is conferred from the punishment inflicted by the law for a crime he has committed.
• It has an impact on both the penalty for the offence and the offender's guilt.
• In other words, the grant of pardon absolves the accused of his guilt and restores him to his original position of innocence, as if he had never done the offence for which he was charged.
• The President of India and the Governors of States have the authority under Indian law to award pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence.
• Articles 72 and 161 of the Constitution provide the provisions regulating the issue of pardon.

Pardoning Powers - Judicial Verdicts

Dhananjoy Chatterjee alias Dhana v State of West Bengal

• The Supreme Court stated in this case that the power granted by Articles 72 and 161 of the Constitution may only be utilised by the Central and State Governments, not by the President or Governor on their own.
• The Head of State is bound by the advice of the appropriate Government.

Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors

• The Supreme Court concluded in a landmark decision that it is a well-established concept that the Supreme Court and High Courts have limited judicial scrutiny of the use of clemency powers.
• Clemency awarded by the President or Governor may be challenged on the following grounds:
  • The directive was issued without any consideration.
  • The order is illegal.
  • Extraneous or completely irrelevant considerations were used to make the decision.
  • Relevant content was excluded from consideration.
  • The sequence is subject to arbitrariness.

Conclusion

For a long time, pardon as a method of mitigating the sentence of the accused has been a contentious issue. Those who oppose pardon as an effective measure of mitigating circumstances argue that the executive frequently abuses the power to pardon. The convict may be able to obtain his release from prison by wielding undue influence over the executive authority. To avoid these flaws, most countries have a provision for judicial review of the pardon granted if the grounds for pardon are found to be unsatisfactory.

FAQs

MCQs

1. Under which Article of the Indian Constitution does the President have the power to pardon?

A) Article 161
B) Article 72
C) Article 123
D) Article 226

2. Which of the following powers is NOT available to the Governor of a state?

A) Reprieve
B) Remission
C) Pardon of death sentence
D) Commutation of sentences

3. What is the key difference between the pardoning powers of the President and the Governor?

A) The Governor can pardon court-martial cases
B) The President can pardon state laws
C) The President can pardon death sentences
D) The Governor has more pardoning powers than the President

4. Under which Article does the Governor of a state exercise their pardoning powers?

A) Article 72
B) Article 161
C) Article 14
D) Article 356

5. Which of the following is an example of the Governor's pardoning powers?

A) Pardoning a death sentence
B) Remitting the sentence of a state law convict
C) Commuting a court-martial sentence
D) Granting reprieve in cases under Union law

GS Mains Questions and Answers

Q1: Discuss the significance of the pardoning powers of the President and the Governor in the Indian justice system. How do these powers act as a check on judicial decisions?

Answer: The pardoning powers of the President (under Article 72) and the Governor (under Article 161) are significant mechanisms within the Indian justice system. These powers serve as a check on the judiciary by allowing for the exercise of mercy in cases where judicial decisions may need reconsideration due to extenuating circumstances or potential judicial errors. This power provides the executive branch with the ability to review sentences, especially in cases of severe punishments such as the death penalty, and allows for clemency in situations where justice may require a degree of leniency.

The power to pardon, remit, or commute sentences is essential in ensuring that the justice system is not rigid but tempered by considerations of humanity. It also reflects the belief that the executive branch should have the authority to intervene in cases where the courts may not have fully taken into account certain aspects of a convict's case. However, while the President's powers extend to death sentences, court-martial cases, and Union laws, the Governor’s powers are limited to state laws and do not include the power to pardon death sentences.

This division of powers ensures that there is both central and state-level oversight over the justice system, allowing for a broader and more comprehensive approach to addressing the needs of justice in a diverse and federal system like India's.

Q2: Compare the scope of pardoning powers between the President and the Governor. How do these powers reflect the federal structure of India?

Answer: The pardoning powers of the President (under Article 72) and the Governor (under Article 161) reflect the federal structure of India by delineating responsibilities and powers between the Union and the state governments. The President’s pardoning powers cover cases involving Union law, court-martial sentences, and the exclusive authority to pardon death sentences. In contrast, the Governor’s powers are limited to state laws, and they do not have the authority to pardon death sentences.

This distinction ensures that both the central and state governments can exercise clemency over matters within their jurisdiction, maintaining a balance of power between the two levels of government. The federal structure is evident in how both the President and the Governor exercise these powers independently, while still ensuring that justice is served fairly and impartially across different levels of governance.

Q3: Evaluate the challenges and limitations associated with the pardoning powers of the President and the Governor in India.

Answer: While the pardoning powers of the President and the Governor are crucial to ensuring justice and mercy in the legal system, they also come with certain challenges and limitations. One significant challenge is the potential for political considerations to influence the exercise of these powers. Since pardoning decisions are made by the executive, there is a possibility that political interests could impact the decision-making process, leading to concerns about fairness and impartiality.

Another limitation is the lack of clear guidelines on the criteria for granting pardons. This ambiguity can lead to inconsistent decisions, with some convicts receiving pardons while others in similar circumstances do not. Additionally, the exclusive authority of the President to pardon death sentences can lead to delays in justice, as convicts may have to wait for lengthy periods before their cases are reviewed by the President.

Despite these challenges, the pardoning powers play an essential role in balancing justice with mercy. To address the limitations, it is important to establish transparent procedures and ensure that the powers are exercised fairly and without undue political influence.

Previous Year Questions on Pardoning Powers

1. UPSC CSE Prelims 2020:

Question: Which Article of the Constitution grants the President the power to grant pardons, reprieves, and commutations of sentences?

A) Article 161
B) Article 72
C) Article 76
D) Article 356

Answer: B

Explanation: Article 72 of the Indian Constitution grants the President the power to grant pardons, reprieves, and commutations of sentences in certain cases, including death sentences and court-martial cases.

2. UPSC CSE Mains 2019 (GS Paper 2):

Question: "The pardoning powers of the President and the Governor serve as an essential check on the Indian justice system." Discuss the significance and limitations of these powers.

Answer: The pardoning powers of the President and the Governor serve as a crucial check on the judiciary, allowing for mercy in cases where judicial errors may have occurred or where humanitarian considerations warrant a reduction in punishment. These powers ensure that justice is not purely punitive but can be tempered with clemency. However, the exercise of pardoning powers can be subject to political influence, and there is a need for clearer guidelines to ensure that pardons are granted consistently and fairly.

The President's exclusive power to pardon death sentences and cases of court-martial, while necessary for central oversight, can sometimes lead to delays in justice. In contrast, the Governor's powers are more limited, applying only to state laws, and do not include the power to pardon death sentences. Despite these challenges, pardoning powers remain an essential part of India's legal system, ensuring that justice is served with fairness and compassion.