Article 72

In News: The Supreme Court held that Centre was bound to advise the President of India for the exercise of his powers under Article 72 of the Constitution and to release the appellant (Abu Salem).

Background

• The then Deputy Prime Minister and Home Minister L. K. Advani had given a ‘solemn sovereign assurance’ to a Portugal court that Abu Salem would neither be sentenced to death nor serve more than 25 years in prison.
• The case had triggered concern in the Supreme Court about the “international ramifications” India may face if seen to take back on solemn promises made to foreign powers and their courts while securing an extradition.
• However, the Central Bureau of Investigation, in a recent affidavit, had maintained that Mr. Advani’s assurance was no guarantee.

Article 72

Pardoning Power of the President in India:

• 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
• Although the President is bound by the Cabinet’s advice, Article74 (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.

President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:

• Punishment or sentence is for an offence against a Union Law;
• Punishment or sentence is by a court martial (military court); and
• Sentence is a sentence of death.
• The pardoning power of the President is independent of the Judiciary; it is an executive power.
• But, the President while exercising this power, does not sit as a court of appeal.
• The object of conferring this power on the President is two-fold:

(a) to keep the door open for correcting any judicial errors in the operation of law; and, (b) to afford relief from a sentence, which the President regards as unduly harsh.

• Under Article 161, the Governor in India too has pardoning powers.

Difference Between Pardoning Powers of President and Governor:

• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161 which differs in the following two ways:
• Court Martial: The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
• Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

The pardoning power of the President includes the following:

• Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
• Commutation: It denotes the substitution of one form of punishment for a lighter form.
• Remission: It implies reducing the period of sentence without changing its character..
• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
• Reprieve: It implies a stay of the execution of a sentence for a temporary period.

Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Source: The Hindu

Previous Year Question

Q.1) If the President of India exercises his power as provided under Article 356 of the Constitution in respect of a particular State, then (2018)

1. the Assembly of the State is automatically dissolved.
2. the powers of the Legislature of that State shall be exercisable by or under the authority of the Parliament.
3. Article 19 is suspended in that State.
4. the President can make laws relating to that State.