President’s powers to pardon — in US, India


With less than two months of his tenure remaining, US President Donald Trump exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor, who had twice pleaded guilty to lying to the FBI.

  • 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.
  • Clemency is a broad executive power, and is discretionary — meaning 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.
  • For instance, Article II, Section 2 of the US Constitution says 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.
  • Trump happens to have used his pardon powers less than any president in modern history, Pew Research data show. 
  • In his four years, Trump has granted pardons to 29 people (including Flynn) and 16 commutations.


How Indian President pardons

  • Unlike the US President, whose powers to grant pardons are almost unfettered, the President of India has to act on the advice of the Cabinet.
  • 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”. 
  • Under Article 161, the Governor too has pardoning powers, but these do not extend to death sentences.
  • In several 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.
  • 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.
  • 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.
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