Pardoning power of the President

Also called: Article 72, Clemency power · Topic: Union Executive: President, Vice-President, Prime Minister and Council of Ministers · NCERT: Beyond NCERT

Meaning

The pardoning power of the President (Article 72) lets the President forgive a convicted person, or reduce, change or pause the punishment. It covers court-martial sentences, offences against Union laws and all death sentences. The President uses it on the advice of the Union Council of Ministers. Courts can review it only in a limited way.

It matters because it is the last safety net against a court's mistake, and a way for the state to show mercy. It also shows how the Union executive, the courts and the states share power.

Explanation

What kind of power it is

• It is an executive power, not a court appeal.
• The President does not sit as a higher court.
• The President does not decide again whether the person is guilty.

• The President only decides whether the punishment should be reduced or removed.

• Why the Constitution includes it:

• To correct a judicial error: a mistake by a court that the legal system itself could not fix.
• To show mercy: for example because of old age, illness or family situation.

• To serve the public interest: for example during peace talks or on national occasions.

• Clemency means mercy shown by the state to a convicted person. "Clemency power" is another name for the pardoning power.

Scope: the three classes of case (Article 72(1))

• Under Article 72(1), the President can "grant pardons, reprieves, respites or remissions of punishment or … suspend, remit or commute the sentence" of any convicted person in three classes of case [1]:
• (a) Court-martial: all sentences given by a court-martial (a military court that tries members of the armed forces).
• (b) Union laws: all offences against a law on a subject within the executive power of the Union.

• (c) Death sentences: all cases where the sentence is death.

• Article 72(2): clause (a) does not take away any power that a law gives to armed forces officers to suspend, remit or commute a court-martial sentence [1].

• Article 72(3): clause (c) does not take away the Governor's power, under any law in force, to suspend, remit or commute a death sentence [1].

The five forms of clemency

Form	What it does	Example
Pardon	Removes both the sentence and the conviction. The person is freed from all punishments and disqualifications.	The person is treated as if never convicted
Commutation	Replaces the punishment with a lighter type of punishment	Death → rigorous imprisonment → simple imprisonment
Remission	Cuts the length of the sentence. The type stays the same.	2 years' rigorous imprisonment cut to 1 year's rigorous imprisonment
Respite	Gives a lighter sentence because of a special fact about the convict	Physical disability; pregnancy of a woman convict
Reprieve	Temporarily stops a sentence from being carried out, especially a death sentence, while the convict seeks a pardon or commutation	Execution put on hold while a mercy petition is pending

• Exam trap: remission changes the length. Commutation changes the type.
• Article 72 also uses the word "suspend", which means putting a sentence on hold for some time.

Procedure: how a mercy petition is decided

A mercy petition is a written request from a convict, or from someone acting for the convict, asking the President or Governor for clemency.

1. Courts first: the convict usually uses up all court remedies first: appeal, review and curative petition.

2. Filing: the convict can apply for remission under the Code of Criminal Procedure (CrPC). The convict can also send a mercy petition to the Governor (Art. 161) and to the President (Art. 72) [3]. - Time limit: under Section 472 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC from 1 July 2024, the petition in a death sentence case must be filed within 30 days of the convict being told that the Supreme Court has rejected the appeal.

3. MHA processing: the Ministry of Home Affairs (MHA) collects the views of the state government concerned and the case records. It processes the petition "in consultation with the concerned Governments/Departments and President's Secretariat" [4][5].

4. Advice: the Union Home Minister / Cabinet advises the President.

5. Decision: the President decides on that advice. The President does not act on personal judgment and must follow the aid and advice of the Union government under Article 74 [2]. - Under the Article 74(1) proviso, added by the 44th Amendment, 1978, the President can send the advice back once for reconsideration. After that, the President must accept it. - No time limit for deciding: Article 72 sets no deadline. The Supreme Court has said delays should be kept as short as possible [4][5].

6. After the decision: under BNSS s. 472, no appeal lies in any court against the President's order under Article 72. - If the petition is rejected, there must be at least 14 days before execution (Shatrughan Chauhan, 2014).

In the Constitution and practice

• Where it sits: Article 72, in Part V (the Union Executive). The parallel power of the Governor for state laws is Article 161.
• Origin: Draft Article 59 dealt with the President's pardoning power. The Constituent Assembly debated it on 29 December 1948 and 17 October 1949 [1].

• The Assembly gave pardons for offences under Union laws to the President and pardons for offences under state laws to the Governor. In death sentence cases, both were given some clemency power [1].

• Who actually uses it: the President, on the advice of the Union Council of Ministers (Art. 74). In practice, the MHA prepares the advice.

Landmark cases

• Maru Ram v. Union of India (1980):
• The pardoning power is used on the advice of the Council of Ministers, not by the President's personal choice.
• The Court upheld Section 433A CrPC, added in 1978. Under it, a life convict must serve at least 14 years before release on remission if the crime carried a possible death sentence, or if a death sentence was commuted to life.

• The constitutional power under Arts. 72/161 is separate from this limit and not bound by it.

• Kehar Singh v. Union of India (1988): this case arose from the assassination of PM Indira Gandhi in 1984.

• The President may look at the evidence afresh and take a view different from the courts. This does not change the court's judgment. It only changes its effect on the convict.
• The convict has no right to an oral hearing, meaning no right to argue in person before the President.
• The Court refused to lay down guidelines for using the power.

• Judicial review (courts checking whether a government action is legal) is limited. Courts check how the decision was made, not whether it was wise.

• Epuru Sudhakar v. Govt. of Andhra Pradesh (2006): the Supreme Court quashed (cancelled) the Andhra Pradesh Governor's remission for a Congress leader. A clemency order can be struck down if it is made:

• without application of mind, i.e. without properly looking at the facts;
• with mala fides (bad faith);
• on irrelevant grounds such as political loyalty, caste or religion;

• arbitrarily (without reason), or by ignoring relevant material.

• Shatrughan Chauhan v. Union of India (2014):

• A long, unexplained delay in deciding a mercy petition is a valid ground to commute a death sentence to life imprisonment, because long waiting on death row is itself cruel.
• The death sentences of 15 convicts were commuted.

• Safeguards set by the Court:

  • at least 14 days between rejection of the petition and execution;
  • written notice to the convict and the family;
  • no solitary confinement (keeping a prisoner alone) before the petition is finally rejected;
  • legal aid, medical and mental health care, and a final meeting with the family.

• Union of India v. V. Sriharan (2015): a Constitution Bench ruling in the Rajiv Gandhi assassination case.

• For remission under the CrPC, the Union is the "appropriate government" when a Central agency (CBI) investigated the case under a Union law.
• Courts can give a special life sentence of a fixed term beyond 14 years, during which no remission is allowed.

• The constitutional power under Arts. 72 and 161 is not affected by these limits.

• A.G. Perarivalan v. State of Tamil Nadu (2022):

• In 2018 the Tamil Nadu cabinet advised the Governor to release Perarivalan.
• The Governor held the advice for about 2.5 years and then sent it to the President.
• The Supreme Court held that under Art. 161 the Governor is bound by the state cabinet's advice, and that the delay was itself open to judicial review.
• Using Article 142 (the Court's power to pass any order needed for "complete justice"), the Court ordered his release in May 2022.

Key instance

• Nirbhaya case (2012 Delhi gang rape):
• The President rejected the mercy petitions.
• The four convicts were executed on 20 March 2020 in Tihar Jail.
• The case showed how filing petitions one after another can delay an execution.

Don't confuse with

• Governor's pardoning power (Art. 161): the Governor covers only offences against state laws. The Governor has no power over court-martial sentences and cannot pardon a death sentence, but can suspend, remit or commute it.
• Statutory remission (CrPC ss. 432–435, 433A → BNSS 2023 ss. 473–477): the "appropriate government" grants this under an ordinary law. The 14-year minimum applies to it. It does not apply to constitutional clemency under Arts. 72/161.
• Appeal to a court: an appeal re-examines guilt and can change the judgment. A pardon leaves the judgment as it is and only changes its effect on the convict (Kehar Singh, 1988).
• Respite vs reprieve: a respite gives a lighter sentence because of a special fact, such as pregnancy or disability. A reprieve is only a temporary stay of the sentence.

Prelims Hooks

• Art. 72 covers court-martial sentences, offences against Union laws and all death sentences. Art. 161 covers offences against state laws only.
• Only the President can pardon a court-martial sentence. The Governor cannot.
• Pardon removes both the sentence and the conviction. Remission cuts the length. Commutation changes the type.
• Maru Ram (1980): the power is used on Cabinet advice, and the 14-year minimum under s. 433A CrPC was upheld. Kehar Singh (1988): there is no right to an oral hearing.
• Epuru Sudhakar (2006): clemency can be struck down for mala fides or irrelevant grounds. Shatrughan Chauhan (2014): long delay justifies commutation, and execution must come at least 14 days after rejection.
• Trap: Article 72 sets no time limit for deciding a petition [4][5]. BNSS s. 472 sets a 30-day limit only for filing one.

Mains Points

• Mercy vs rule of law:
• Clemency corrects court errors and allows mercy.
• But it is used on ministers' advice, with no reasons given and no time limit, so it can be misused for political ends.

• Epuru Sudhakar (2006) offers a middle path: courts check how the decision was made, while the executive keeps the power.

• Delay as injustice:

• Shatrughan Chauhan (2014) treats long waits on death row as cruel.
• BNSS 2023 s. 472 fixes 30 days for filing but no deadline for deciding.
• Possible reforms:
  • fixed time limits for the MHA and Governors;
  • deciding petitions from the same case together;
  • publishing reasons for decisions.

• A deadline would bring certainty, but it would limit a power the Constitution leaves open.

• Federal friction:

• Governors have sat on cabinet advice (Perarivalan, 2022).
• The Union and states have disputed which is the "appropriate government" for remission (V. Sriharan, 2015).
• Clear rules and a fixed time for Governors to act would reduce this Union–state conflict.

Related concepts

• Pardon
• Commutation
• Remission
• Respite
• Reprieve
• Maru Ram case
• Kehar Singh case
• Epuru Sudhakar case

Read more

• The pardoning power