Crown & President: Power to Pardon

 In a monarchy the crown was given the power to pardon. But in India there is democracy. According to the Article 52 of the Constitution of India, the President is the Executive head of the Union of India. Thus if the Prof Kenny’s definition is read in Indian context the power should lie with the President, it happens so but with few stipulations.

Under Article 72 of the Indian Constitution the Indian President is empowered to grant pardon, he can reprieve, respite or remit the punishment. The Article 72 reads: 

(1) The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence-

(a) in all cases where the punishment or sentence is by a court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub- clause (a) of clause (1) shall after the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

By the virtue of this article the president can grant pardon but the materialistic fact is that whether such power is an absolute one because the word “Shall” in clause (1) of the Article is ambiguous. Apart from it was also held that this power of pardon shall be exercised by the President on the advice of Council of Ministers. Let us see what is the scenario in other parts of the world regarding this power.

A Global View of Presidential Pardon

(i) United States of America

According to the Article II Section 2 of the U.S. Constitution the President can grant pardon except in the cases of impeachment. Unlike Indian President the American President has the absolute power, such power cannot be questioned or blocked by the court or the congress. In case of misuse the only act which could be done is call for impeachment of the President. Thus there is no question of any judicial review.

(ii) Pakistan

Recently the question of granting of Pardon was in lime light in Sarabhjit’s Case. By the virtue of the Article 45 of the Pakistan’s Constitution the President has an absolute power to grant pardon, reprieve, respite & remit, suspend or commute any sentence passed by any court, tribunal or authority. The power cannot be questioned.

(iii) France, Germany & Russia 

In France pardon & act of clemency are granted by President of France who has the sole discretion & power is non questionable & absolute.

A German President has pardoning power which he can transfer to someone else such as chancellor or the minister of justice.

An absolute power of pardon is given to the Russian President through the Article 84 of the constitution.

Thus it could be easily seen that wherever the power of pardon is given to the President, it is given absolutely then question arises that why the framers of Indian Constitution didn’t armed the president with an absolute power to pardon.

Pardoning Power of President in India

As earlier discussed the pardoning power of the President is not an absolute one but is governed by the advice of the Council of Ministers. Now we should think about what would have been the real issue in the mind of the framers of the constitution for not imparting the President an absolute power. One thing should be made clear first that the framers were of the view that there should be a capital punishment & such capital punishment shall be pardoned on grounds of morality after a mercy pleading by the President, it could be said that the framers just wanted to put a check on the power as if the power would have been an absolute it could be possible that a soft hearted President would pardon most of the mercy pleaders, for this it was the council of ministers who had to review it & give their advice. 

Thus the framers had the inception that the misuse of the power would be guarded by the Council of Ministers, they had a good faith on them but today the time has changed, whenever a government comes in existence (if absolute) the Council of Ministers appointed are generally having an absolute power & as Lord Acton has said “Power tends to corrupt & absolute power corrupts absolutely” the absolute power had encrypted a layer of corruption & due to it a danger of misuse of power is always existing, this can only be checked by judiciary.