UPSC Prelims 2025 Q86: President's Pardoning Power (Art 72) — Explained
Consider the following statements with regard to pardoning power of the President of India:
I. The exercise of this power by the President can be subjected to limited judicial review.
II. The President can exercise this power without the advice of the Central Government.
Which of the statements given above is/are correct?
- I only
- II only
- Both I and II
- Neither I nor II
Answer: (a) I only
Statement-wise explanation
- I: correct — In Epuru Sudhakar v. Govt. of Andhra Pradesh (2006), the Supreme Court held that clemency orders under Articles 72 and 161 can be reviewed by courts, but only on narrow grounds. These grounds are mala fides, non-application of mind, reliance on irrelevant or extraneous considerations, ignoring relevant material, and arbitrariness. Kehar Singh v. Union of India (1989) had already said the courts cannot examine the merits of the President's decision, only how the power was exercised. So the review is real but limited, which is exactly what the statement says.
- II: incorrect — Under Article 74(1), the President acts on the aid and advice of the Council of Ministers. In Maru Ram v. Union of India (1980) and again in Kehar Singh (1989), the Supreme Court held that this rule applies to the pardoning power too. In practice, the Ministry of Home Affairs processes each mercy petition and sends its advice to the President. The President can return the advice once for reconsideration under the proviso to Article 74(1), added by the 44th Amendment (1978), but is then bound by it. Article 72 gives the President no personal discretion.
How to eliminate
Statement II is the easier one to judge. India has a parliamentary executive, and the President acts on ministerial advice under Article 74(1) except in a few situations, such as choosing a Prime Minister when no party has a majority. The pardoning power is not one of those exceptions. Any statement saying the President can act 'without the advice of the Central Government' should make you suspicious. Once you strike out Statement II, only two options remain: Statement I alone, or neither statement. For Statement I, the word 'limited' is a strong clue. Courts in India rarely say an executive power is completely outside judicial review, and they rarely review its merits fully. 'Limited judicial review' is the standard middle position. The fact to remember is the Epuru Sudhakar (2006) grounds: mala fides, non-application of mind, extraneous considerations, and arbitrariness.
Know more
Article 72 gives the President power to pardon or reduce the sentence of any person convicted:
- by a court-martial;
- of an offence against a Union law; or
- in any case of a death sentence.
Article 161 gives a similar power to the Governor for offences against State laws. The Governor cannot pardon a court-martial sentence. The Governor also cannot grant a full pardon in a death sentence case.
Five forms of clemency
| Form | What it does |
|---|---|
| Pardon | Removes both the sentence and the conviction |
| Commutation | Replaces the punishment with a lighter kind (death → life imprisonment) |
| Remission | Shortens the sentence without changing its kind |
| Respite | Gives a lighter sentence because of a special fact (pregnancy, illness) |
| Reprieve | Stays execution for a time, e.g. while a petition is pending |
Landmark cases
| Case | Holding |
|---|---|
| Maru Ram (1980) | The power is exercised on the advice of the Council of Ministers |
| Kehar Singh (1989) | The petitioner has no right to an oral hearing. The President may look at the evidence afresh. Review is limited to how the power was exercised |
| Epuru Sudhakar (2006) | Review is allowed on grounds of mala fides, non-application of mind, extraneous considerations and arbitrariness. A Governor's remission order was quashed |
| Shatrughan Chauhan (2014) | Unexplained delay in deciding a mercy petition can be a ground to commute a death sentence |
The pardoning power is an executive act, separate from the judicial process. It does not change the court's finding. It only relieves the convict of the punishment. Article 72 sets no time limit for deciding a petition. This is why delay became a ground for review.
NCERT Concepts to Revise
- Pardoning power of the President: The question is entirely about Article 72's pardoning power: who exercises it and how far courts can check it.
- Kehar Singh case: Kehar Singh (1989) is a leading case on both questions here: ministerial advice and the scope of court review of a pardon.
- Judicial review: Statement I depends on what judicial review means and how far it reaches into executive clemency decisions.
- Commutation: Commutation is the most common form of clemency in death-sentence mercy petitions under Article 72.
- Respite: Respite is one of the five forms of clemency listed in Article 72 and is often confused with reprieve.