Context:
U.S. President Joe Biden issued an unconditional pardon for his son, who was facing sentencing for federal tax violations and gun conviction.
Origin and Evolution of Pardoning Power:
- Origins of Pardoning Power:
- Traces back to the British royal prerogative of mercy.
- Initially provided alternatives to severe sentences, like death penalties.
- Evolution of Pardoning Power:
- Evolved into a mechanism for granting clemency.
- Often exercised upon the advice of government ministers.
- Reflects the shift from absolute monarchy to structured governance.
- Role in Modern Democracies:
- Holds both symbolic and functional significance.
- Used to correct judicial errors and address perceived injustices.
- Demonstrates compassion in specific cases.
Pardoning power:
- Pardoning power is the authority given to a head of state or government to grant clemency to individuals convicted of crimes.
- It can offer relief from punishment, reduce sentences, or remove related disqualifications, though it does not necessarily expunge the conviction record.
Pardoning powers of US and Indian Presidents:
| Aspect | US President | Indian President |
| Constitutional Provision | Article II, Section 2, US Constitution | Article 72, Indian Constitution |
| Applicability | Federal crimes only; excludes impeachment cases | Offenses under Union laws, court-martial, and death sentences |
| Time of Pardoning | Can be granted before or after conviction | Post-conviction only |
| Level of Discretion | Absolute; no requirement for advice or approval | Based on Cabinet advice; limited discretion |
| Extent of Power | Broad and independent; includes self-pardons | Limited; cannot act independently of government |
| Types of Pardoning | Pardon, reprieve, commutation, remission, amnesty | Pardon, reprieve, commutation, remission, respite |
| Court-Martial Cases | No provision | Included |
| Death Sentence | Can pardon | Can pardon |
| Judicial Review | Not subject to judicial review | Subject to judicial review if arbitrary, mala fide, or irrational |
| Role of Other Bodies | No mandatory consultation | Requires advice from the Council of Ministers |
| Self-Pardoning | Possible (controversial and untested) | Not applicable |
Key Judgments on the Pardoning Powers of the President:
- Maru Ram v. Union of India (1980):
- Subject to judicial review if exercised arbitrarily, irrationally, or in bad faith.
- President must act on the advice of the Council of Ministers.
- Kehar Singh v. Union of India (1989):
- President cannot be compelled to give reasons for clemency decisions.
- Clemency decisions not open to challenge on merits.
- Epuru Sudhakar v. Government of Andhra Pradesh (2006):
- Pardoning power not absolute; subject to judicial review.
- Criteria for Review: Must not violate principles of natural justice; must be free from arbitrariness or mala fide intent.
- Expanded scope for judicial intervention in clemency matters.
- Shatrugan Chauhan v. Union of India (2014):
- Delays in deciding mercy petitions can be grounds for commutation of death sentences.
- Emphasized the need for prompt decision-making by the President or Governor to ensure fairness.
Source: TH
Previous Year Question
If the president of India exercises his power as provided under Article 356 of the constitution in respect of a particular state, then
(UPSC CSE – 2018 Prelims)
(a) the assembly of a state is automatically dissolved.
(b) the power of the Legislature of that State shall be exercisable by or under the authority of the Parliament.
(c) Article 19 is suspended in that State.
(d) the President can make laws relating to that State.
Answer: (b)
