In the last period of his presidency, 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.
A pardon allows a person to be relieved of all or part of the consequences for a crime. This may be because they were wrongly convicted, or because they have otherwise been rehabilitated.
The process of seeking a pardon is known as pardon petition and can be initiated by the individual concerned, or by someone else on their behalf, usually a lawyer.
A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction. The word "pardon" is an old French word meaning "to let go" (the person or the penalty).
The US President’s power of pardon can be exercised at any time after a person is convicted or pleads guilty, and even before sentencing.
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.
The President of India has to act on the advice of the Cabinet, unlike the US President, whose powers to grant pardons are almost unfettered.
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.
The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan 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.
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.