The pardoning power

Detail

What the pardoning power is

• Pardoning power (Article 72): the President can forgive a convicted person or reduce their punishment. The aim is to fix a mistake made by a court, or to show mercy.
• It is an executive power, not a court appeal. The President does not act 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 has it:
• to correct a judicial error (a mistake by the court that the legal system 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.

• Origin: Draft Article 59 of the Constitution covered the President's pardoning power. The Constituent Assembly debated it on 29 December 1948 and 17 October 1949 [2].

• The Assembly gave pardons for offences under Union (federal) laws to the President and pardons for offences under state laws to the Governor. In death sentence cases, both were given some clemency (mercy) power [2].

Article 72: exact text and scope

• 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 [2]:
• (a) all sentences given by a court-martial (a military court that tries members of the armed forces);
• (b) all offences against a law on a subject that falls within the executive power of the Union, i.e. Union laws;

• (c) all cases where the sentence is a death sentence.

• 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 [2].

• 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 [2].

President (Art. 72) vs Governor (Art. 161)

Point	President (Art. 72)	Governor (Art. 161)
Offences covered	Offences against Union laws	Offences against state laws (subjects within the state's executive power)
Court-martial sentences	Yes	No
Death sentence	Can pardon, commute, remit, suspend, reprieve, respite	Can suspend, remit or commute it, but cannot pardon it
Acts on advice of	Union Council of Ministers (Art. 74)	State Council of Ministers (Art. 163)

The five forms of clemency

Clemency means mercy shown by the state to a convicted person.

Form	Meaning	Example
Pardon	Removes both the sentence and the conviction. The person is fully freed from all punishments and disqualifications.	Person is treated as if never convicted
Commutation	Replaces a punishment with a lighter type of punishment	Death → rigorous imprisonment → simple imprisonment
Remission	Cuts the length of a sentence. The type of sentence 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, especially a death sentence, from being carried out while the convict seeks a pardon or commutation	Execution put on hold while a mercy petition is pending

• Exam trap: remission changes the length of a sentence. Commutation changes its type.
• Article 72 also uses the words "suspend" (put a sentence on hold for some time) and "remit".

Procedure: how a mercy petition is decided

Mercy petition: a written request from a convict, or someone acting for the convict, asking the President or Governor for clemency.

1. Courts first: the convict usually uses up all court remedies (appeal, review, curative petition).
2. Petition filed: the convict can apply for remission under the Code of Criminal Procedure (CrPC), and can also send a mercy petition to the Governor (Art. 161) and to the President (Art. 72) [4].
3. MHA processes it: the Ministry of Home Affairs (MHA) gets the views of the state government concerned and the case records. The petition is processed "in consultation with the concerned Governments/Departments and President's Secretariat" [5][6].
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 act on the aid and advice of the Union government under Article 74 [3]. - Under the Art. 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.

6. No time limit: Article 72 sets no time limit for deciding a petition. The Supreme Court has said that delays should be kept as short as possible [5][6]. - Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC from 1 July 2024: Section 472 sets out steps for mercy petitions in death sentence cases. - The convict must file the petition within 30 days of being told that the Supreme Court has rejected the appeal. - No appeal lies in any court against the President's order under Art. 72.

Key Supreme Court judgments

Maru Ram v. Union of India (1980)

• The President and Governor use the pardoning power on the advice of the Council of Ministers, not on personal choice.
• Upheld Section 433A CrPC, added in 1978. Under it, a life convict whose crime carried a possible death sentence, or whose death sentence was commuted to life, must serve at least 14 years before release on remission.
• The constitutional power under Arts. 72/161 stays separate from this statutory limit and is not bound by it.

Kehar Singh v. Union of India (1988)

• Arose from the assassination of Prime Minister Indira Gandhi (1984). Kehar Singh's mercy petition was rejected.
• The President may examine 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 (a chance to argue in person) before the President.
• The Court will not lay down guidelines on how to use the power.
• Judicial review (the power of courts to check whether a government action is legal) is only limited. Courts check how the decision was made, not whether the decision was wise.

Epuru Sudhakar v. Govt. of Andhra Pradesh (2006)

• The Governor of Andhra Pradesh had remitted (reduced) the sentence of a Congress leader. The Supreme Court quashed (cancelled) the remission.
• 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 or extraneous grounds such as political loyalty, caste or religion;
• arbitrarily (without reason), or by ignoring relevant material.

Shatrughan Chauhan v. Union of India (2014)

• Inordinate, unexplained delay in deciding a mercy petition is a valid ground to commute a death sentence to life imprisonment. Long waiting on death row is itself cruel.
• Death sentences of 15 convicts were commuted.
• Safeguards set by the Court:
• at least 14 days between rejection of the mercy petition and execution;
• the convict and family must be informed in writing;
• no solitary confinement (keeping a prisoner alone, cut off from others) before the mercy 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) (Constitution Bench, Rajiv Gandhi assassination case)

• On statutory remission (remission under the CrPC), the Union government, not the state, is the "appropriate government" where a Central agency (CBI) investigated the case under a Union law.
• Courts may give a special life sentence of a fixed long 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, a convict in the Rajiv Gandhi case. The Governor sat on the advice for about 2.5 years and then sent it to the President.
• The Supreme Court held the following:
• Under Art. 161 the Governor is bound by the state cabinet's advice.

• The delay was itself open to judicial review.

• Using Article 142 (the Supreme Court's power to pass any order needed to do "complete justice"), the Court ordered his release in May 2022.

Nirbhaya case (2012 Delhi gang rape)

• The President rejected the convicts' mercy petitions.
• The four convicts were executed on 20 March 2020 in Tihar Jail.
• The case showed how convicts can file petitions one after another, which delays execution.

Constitutional power vs statutory remission

Basis	Constitutional clemency	Statutory remission
Source	Arts. 72, 161	CrPC ss. 432–435, 433A → now BNSS 2023 ss. 473–477
Who decides	President / Governor on ministers' advice	"Appropriate government" (Union or state)
14-year minimum	Does not apply	Applies (s. 433A CrPC / s. 475 BNSS)
Judicial review	Limited (Kehar Singh, Epuru Sudhakar)	Normal review of government action

Debates

• Delay: there is no time limit [5][6]. Petitions sometimes stay pending for years, which leads to commutations as in Shatrughan Chauhan (2014). A time limit would bring certainty, but it would limit a power the Constitution leaves open.
• Secrecy: clemency decisions and the advice behind them are usually not explained in public. Without reasons, it is hard to tell whether a decision was arbitrary.
• Politicised remissions: remissions can be granted for political, caste or religious reasons. Epuru Sudhakar (2006) shows that courts will strike down such orders.
• Union or state? For remission, which government is the "appropriate government"? V. Sriharan (2015) said the Union, for cases investigated by the CBI.
• Governor's delay: a Governor can delay acting on cabinet advice, as in Perarivalan (2022). This tests the rule that the Governor must act on the advice of the state's ministers.

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 court-martial sentences. The Governor cannot.
• The Governor can commute, remit or suspend a death sentence but cannot pardon it.
• Pardon removes both the sentence and the conviction. Remission cuts the length, not the type. Commutation changes the type.
• Respite = lighter sentence because of a special fact (pregnancy, disability). Reprieve = temporary stay of execution.
• Kehar Singh (1988): no right to an oral hearing. The President can take a view on the evidence different from the courts.
• Epuru Sudhakar (2006): clemency is open to judicial review for mala fides and irrelevant grounds.
• Shatrughan Chauhan (2014): long delay justifies commutation. Execution must come at least 14 days after rejection.
• Maru Ram (1980): the power is used on Cabinet advice. It upheld the 14-year minimum under s. 433A CrPC.
• Art. 142 was used in Perarivalan (2022) to order release.

Mains Points

• Mercy vs rule of law: clemency corrects judicial error and allows mercy. Because it is used on ministers' advice, with no reasons given and no time limit, it is open to political misuse. Epuru Sudhakar (2006) gives a check through judicial review without taking the power away from the executive.
• Delay as injustice: Shatrughan Chauhan (2014) treats long waits on death row as cruel. Possible reforms:
• fixed time limits for MHA and Governors;
• deciding petitions from the same case together;

• publishing reasons for decisions. BNSS 2023 s. 472 sets a 30-day window for filing but no deadline for deciding.

• Federal friction: Governors have delayed acting on cabinet advice (Perarivalan, 2022), and Union and states have disputed the "appropriate government" (V. Sriharan, 2015). Both show tension between the Union and the states over remission. Clearer rules, or a fixed time for Governors to act, would reduce this conflict.