Analysing President’s Pardon

"The shaman/priest/artist/teacher/leader does not operate for the sole benefit of herself and her kind but for the benefit of the people at large and of the universe and its patterns, as becomes what she perceives as fitting into place, into her sense of natural justice." - Judy Grahn

President is an executive head of the state had a power to pardon, respites, remissions or suspend the sentence of any person convicted of an offence. But the question is about president pardon himself? This is a hypothetical question. President power of pardon is ‘grant ’allows the president to grant pardon, implying that it is being given to someone else, the constitution also clears it that no one is above the law so no one judges themselves. So self -pardoning makes no sense. Not in India only but also in other country’s law president cannot pardon himself.

President's Power to Pardon

Pardon removes both the sentence, conviction and completely clears the convict from all sentences, punishments and disqualifications.

Every country constitution specifically vested a president with the power “to grant pardon, reprieves or commute sentences related to crimes”.

Pardon as of today is not an act of grace but is a constitutional scheme which when granted is the determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgement fixed, said by Justice Holmes of US Supreme Court.

A president power of pardon signifies complete legal forgiveness for a crime, removing any remaining prison sentence, probation conditions or unpaid fines. It also removes other collateral consequences of a conviction, allowing offenders to vote, hold professional licenses, run for public office or own a gun. The presidential power of pardon will not obliterate the record of the conviction.

Pardoning Power of President in India

Before the Constitution came into force in India, the law of pardon in India was the equivalent as the one in England meanwhile the sovereign of England was the sovereign of India. Ahead of 1935, the law of pardon was confined in Section 295 of the Government of India Act which did not limit the power of the Self-governing. The Indian constitution came into force. Article 72 of the Constitution of India, empowers the President to grant pardons, reprieves, respites or remissions of punishment in all cases where the punishment is for an offence against any law to which the executive power of the union extends. Similar power is also available against sentences of courts-martial and sentences of death.

A corresponding to president power of pardon is given to the Governor of a state under Article 161of Indian constitution. A pardon may be absolute or conditional. It may be exercised at any time either before legal proceedings or during their pendency or after conviction. The rejection of one mercy petition does not deplete the pardoning power of the President.

In India, president power of pardon is not absolutely independent power. President is bound by the Cabinet’s advice and cannot exercise his power autonomous of the government. In India Mercy petition first came in Rashtrapati Bhavan than forwards to home ministry looking for the Cabinet’s advice.

The Ministry in return forwards this to the concerned state government based on the reply, it articulates its advice on behalf of the Council of Ministers. Article 74 (1) of the Indian Constitution empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no choice but to accept it.

In Dhananjay Chatterjee vs State of West Bengal in 1994, the Supreme Court has governed that the President has to act on the assistance of the Council of Ministers while determining mercy pleas.

In the case of Maru Ram v. Union of India, the Supreme Court has considered the question of some guidelines for the exercise of power of pardon by the President. Court expressed a view in favour of laying down some guidelines for the purpose of exercising power under Art.72 in order to avoid any allegation of arbitrary exercise of power.

In Kuljeet Singh v. Lt. Governor, in a writ petition, it was contended before the Supreme Court that under Art. 72, President’s power is coupled with a duty and that it must be exercised fairly and reasonably. Again, the question was raised has the Government formulated any uniform standard by which the exercise of the constitutional power under Art. 72 are intended to be fair? The Court held that the question was of extensive importance and that it was necessary that it be examined with care.

Therefore, a writ petition filed by kehar Singh son in the Delhi High Court seeking an order restraining the Central Government from executing the death sentence on Kehar Sing. On this High Court dismissed the petition and special leave appeal under Art. 136 were filed in the Supreme Court. A five judges bench considered the matter and the judgement was passed by the court. On this question, again, the Court displayed the most liberal view. The Court expressed the view that it is open to the President in the exercise of the pardon power vested in him by Article 72 of Indian Constitution ‘to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to the guild of, and sentence imposed on, the accused”.

Pardoning Power of President in the US

Similar to India, US president had a constitutional right to pardon or commute sentences related to federal crimes. US Constitution Article II, Section 2 declares all Presidents “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”. The US Supreme Court has declared that power to pardon is “granted without limit” and cannot be constrained by Congress. Mercy is a broad executive power, and is discretionary — means that the President is not answerable for his pardons, and does not have to provide a purpose for issuing one. The power only provides to federal crimes. The US has a presidential system.

Limitations of Power:

· All Presidents shall have the power to grant Reprieves and Pardons for offences against the United States, except in cases of impeachment.

· 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.

Current scenario of US, President Donald Trump

As President Donald Trump prepares to end his term of four years as US president, facing potential legal jeopardy. He is going to self-pardoning himself. But the question is – self pardoning is constitutional? President Donald Trump cannot self-pardon himself because, in the US Constitution Article II, Section 2 declares all Presidents “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”. The power to grant is for others not for himself/herself. He can’t be judge in his own case. In US a president may not pardon himself because Article III of the US Constitution, which demands that presidents faithfully execute the laws of the US, acts as a limiting condition on the pardon power. If one was to pardon oneself for illegal activity, that would not be a faithful execution of the laws. Trump self-pardon would be ‘incompatible’ with the Constitution.

Pardoning Power of President in UK

In the United Kingdom, the power to grant pardons and reprieves is known as the royal prerogative of mercy. It was an absolute power of the monarch to pardon an individual for a crime, whether or not the person had been convicted, and thereby commute any penalty, the power was then delegated both to the judiciary and the sovereign's ministers. Later the creation of legal rights of appeal, the royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government. Constitutional monarch pardon or show mercy to a conviction on ministerial advice.

Principle of Natural Justice

Principle of Natural Justice is derived from Roman law-word ‘Jus Natural’. It simply means to make a sensible and reasonable decision-making procedure on a particular issue.

“Natural justice is a sense of what is wrong and what is right.”

The basic purpose of Natural justice

  1. To provide equal opportunity of being heard.

  2. Concept of Fairness.

  3. To fulfil the gaps and loopholes of the law.

  4. To protect the Fundamental Rights.

  5. Basic features of the Constitution.

  6. No miscarriage of Justice.

Under Natural Justice “Ministers Power” gave 3 essentials procedure related to the principles of natural justice - (i) No one should be a judge in his own matter. (ii) No one can be condemned unheard. (iii) The party is entitled to know each and every reason and the decision taken by the authority.

Nemo Judex in Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which leads to unfair activity whether in a conscious or unconscious stage in relation to the party or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given judgement on the basis of evidence recorded as per the case.

In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the Constitution. With the overview of the concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into Art. 21. The violation of principles of natural justice results in arbitrariness which therefore leads to violation of natural justice is a violation of the Equality clause of Art. 14.

‘Natural justice is a compact resulting from expediency by which men seek to prevent one man from injuring others and to protect him from being injured by them.’

Can President Pardon Himself?

Whether it is India, UK and USA the Constitution of any country does not clearly address this possibility. Till date, No president has granted himself a self-pardon. Without any legal precedent, it’s undistinguishable whether a self-pardon is constitutional. Every country Constitution sets clear limits to the presidential pardon powers. Like in US power extends only to federal offences with the exception of impeachment.

On other lateral self-pardon opposes the president’s essential constitutional duty to faithfully execute the laws. A president cannot faithfully execute the laws and break them at the same time. And no one is above the law, not the president.

Self-pardon would be unconstitutional because it violates the basic principle of Natural Justice that no one should be a judge in his own case.

Hence, President cannot pardon himself.


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