Compare and contrast power of Indian and USA president to pardon and commute.

India and US are one of the largest two largest democracies. India has parliamentary system whereas US has presidential system.

President’s Power to Pardon in US

The President of the US has the constitutional right to pardon or commute sentences related to federal crimes. The US Supreme Court has held that this power is granted without limit and cannot be restricted by Congress.

CONSTITUTIONAL PROVISIONS

• Clemency is a broad executive power, and is discretionary, that means the President is not answerable for his pardons, and does not have to provide a reason for issuing one. But there are a few limitations.
• Section 2 under Article II, for instance, of the US Constitution says that all Presidents shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
• Further, the power only applies to federal crimes and not state crimes those pardoned by the President can still be tried under the laws of individual states.

Pardoning Power – Indian President

• 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, in which, the Punishment or sentence is for an offence against a Union Law, a court martial (military court),sentence of death.
• The pardoning power of the President is independent of the Judiciary, an executive power. But, the President while exercising this power, does not sit as a court of appeal. It is for correcting any judicial errors in the operation of law, relief from a sentence, which the President regards as unduly harsh.

The pardoning powers of the President are

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.

Unlike the US President, the President of India has to act on the advice of the Cabinet.

PROCESS INVOLVED

• Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.
• The President cannot exercise his power of pardon independent of the government. RashtrapatiBhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

Cases

• The SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
• Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it