Keith Mack
The power to pardon is a significant executive privilege enjoyed by the President of a country. In India, the President can pardon state-level offences, while in the United States, the President's power to pardon is limited to federal crimes. The pardon power of the President of the United States has been a topic of interest, especially with President Trump's controversial pardon decisions. This power is not without limitations and criticism, as it can be abused for political gain and undermine the rule of law. This piece will explore the extent of presidential pardon power in both the United States and India, the legal framework surrounding it, and the potential implications of its exercise.
| Characteristics | Values |
|---|---|
| Country | India, United States |
| President's power | Can pardon crimes under federal law but not offenses under state laws. Can pardon court-martial cases, union law offenses, and death penalties. |
| Governor's power | Can pardon, reprieve, respite, remit, suspend, or commute the punishment or sentence of anyone convicted of an offense under State law. Cannot pardon a death sentence. |
| Limitations | The President cannot exercise this power independently. Decisions must align with the advice of the Council of Ministers. |
| Criticisms | Potential for abuse, undermining the rule of law, and lack of transparency. |
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What You'll Learn
US President's power to pardon
The US President has the power to "grant reprieves and pardons for offences against the United States". This power is granted by Article II, Section 2, Clause 1 of the US Constitution. However, the President's pardon power does not apply to cases of impeachment, and it does not extend to violations of state laws or state-level offences.
The pardon power is considered "plenary", meaning it cannot generally be restricted or modified by Congress or the judiciary. However, the US Supreme Court has held that no one vested with power in one branch of government can use it to override other parts of the Constitution. Therefore, the pardon power is constrained by the rest of the Constitution, and the President cannot use it to place themselves above the law, subvert other parts of the Constitution, violate criminal law, or license future lawbreaking.
The pardon power was first used by George Washington in 1795, when he granted amnesty to participants in the Whiskey Rebellion. Since then, it has been used by many Presidents, including Gerald Ford, who pardoned Richard Nixon for any possible crimes connected with the Watergate scandal, and Joe Biden, who pardoned his son, Hunter Biden, for illegally owning a firearm while using drugs and for tax-related offences.
There have been several criticisms of the pardon power, including the potential for abuse, the undermining of the rule of law, and a lack of transparency in the decision-making process. To prevent abuse, Congress, the judiciary, and the executive branch have access to constitutional tools to constrain the pardon power. For example, federal law prohibits public servants from exchanging official acts for anything of value for themselves or their family members.
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Pardoning powers of the Indian President
The Indian President's pardoning powers are outlined in Article 72 of the Indian Constitution. This provision empowers the President to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence in specific cases. These cases include those involving:
- Punishment by a Court Martial or military court
- The death penalty
- Offences under Union laws
The President's pardoning power is intended to prevent injustice and correct harsh, unjust laws or judgments. It can be used to remedy potential judicial errors and exercise clemency in situations requiring humanitarian considerations. However, it is not without limitations. The President cannot exercise this power independently but must act on the advice of the Council of Ministers, which is led by the Prime Minister. This was affirmed in the landmark case of Maru Ram vs Union of India (1980/1981), where the Supreme Court ruled that the power to grant pardons must be exercised fairly, reasonably, and without arbitrariness, ensuring justice and balance.
While the President's pardoning power is independent of the judiciary, it is subject to judicial review to ensure procedural fairness. This review focuses on adherence to constitutional principles and procedural requirements rather than the merits of the decision. Additionally, the President's power does not extend to impeachment cases or future crimes.
In comparison to the Governor of a State, who exercises pardoning powers under Article 161, the President's pardoning power is more extensive. The Governor can pardon, reprieve, respite, remit, suspend, or commute the punishment or sentence of anyone convicted of an offence under State law. However, they cannot pardon a death sentence but can only suspend, remit, or commute it.
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Pardoning powers of the Governor
The pardoning powers of the Governor vary across different states and countries. In the United States, the President's pardoning powers are limited to federal crimes and do not extend to state-level offenses or impeachment cases. However, each state constitution authorizes the Governor or a Board of Pardons to grant clemency, which is an umbrella term for mechanisms that allow for the remission of the consequences of a committed crime. This includes the power to pardon, which nullifies the legal consequences of a crime, and the power to commute, which shortens an individual's sentence.
In India, the Governor of a state exercises pardoning powers under Article 161 of the Indian Constitution, though with limitations compared to the President's power. The Governor can pardon, reprieve, respite, remit, suspend, or commute the punishment or sentence of anyone convicted of an offense under state law. However, the Governor cannot pardon a death sentence; they can only suspend, remit, or commute it.
The pardoning powers of the Governor and the President in India have faced several criticisms, including the potential for abuse, undermining the rule of law, and a lack of transparency in the decision-making process. Despite these concerns, the pardoning power is intended to keep the door open for correcting any judicial errors and providing relief from unduly harsh sentences.
In Massachusetts, the Governor's power to pardon is rooted in the Constitution of the Commonwealth of Massachusetts and is advised by the Massachusetts Governor's Council. The Governor's Executive Clemency Guidelines state that the Parole Board plays a significant role in advising the Governor on deciding petitions for executive clemency.
Some states, such as Louisiana, Missouri, and Wisconsin, are characterized by the regularity of the pardon process and the frequency of grants under the incumbent or most recent governors. In these states, there is a regular pardon process with a high percentage of applications granted (30% or more). In contrast, other states may have infrequent, uneven, or rare pardoning practices.
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Pardoning powers of the Governor of a State
The pardoning power of a governor of a state varies across different countries and their respective laws. Here, we will discuss the pardoning powers of the Governor of a State in the context of India and the United States of America.
Pardoning Powers of the Governor in India
Article 161 of the Indian Constitution empowers the Governor of a State 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 executive power of the State extends. The pardoning power of the Governor is similar to that of the President of India, including the power to grant a pardon, commutation, remission, respite, or reprieve. However, there are some differences between the pardoning powers of the Governor and the President. For instance, the Governor cannot pardon a death sentence but can only suspend, remit, or commute it. On the other hand, the President can grant a pardon in cases involving a Court Martial, which is not granted to the Governor under Article 161.
The objectives of the pardoning power of the Governor in India are twofold: firstly, to correct any judicial errors in the operation of law, and secondly, to provide relief from a sentence that the Governor considers unduly harsh. This power is intended to act as a safeguard against judicial errors and ensure mercy and fairness in the administration of justice.
Pardoning Powers of the Governor in the United States of America
In the United States, the President's authority to grant clemency or pardons is limited to federal offences and offences prosecuted by the United States Attorney for the District of Columbia. The President does not have the power to pardon crimes under state laws, as these are not considered offences against the United States.
In some states, the governor has the power to pardon, but this power is often exercised by an independent board appointed by the governor. This board reports annually to the governor, the legislature, and the attorney general. The board has the authority to issue pardons with or without the restoration of firearms rights and can restore civil and political rights to individuals with federal and out-of-state convictions. The eligibility criteria for pardon vary, with some states requiring a waiting period of up to five years after the completion of a sentence.
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Limitations of the President's power to pardon
The President's power to pardon is limited to federal offences only. State criminal offences and civil liability are not pardonable, and neither are cases of impeachment.
While the presidential pardon power is expansive, it is not limitless. The pardon power is subject to several express and structural constitutional constraints. The pardon power is considered plenary, meaning it is generally not subject to congressional modification. However, there are at least two limits on the power: clemency may only be granted for offences against the United States, and state criminal offences and federal or state civil claims are not covered.
The Supreme Court has ruled that legislation cannot restrict the president's pardon power. However, the Court has also acknowledged that the power is not entirely without limits. The Court has stated that the power extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgement.
The pardon power is ripe for abuse and could allow a norm-breaking president to infringe upon individual rights and undermine America's separation of powers. The pardon power is not intended to be used as a tool for self-dealing or to further a president's future political efforts.
There is also debate about whether a president can pardon themselves (self-pardon), as this has never been attempted or challenged in court.
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