Pardoning Powers of the President - Article 72

The President's pardoning power in India, grounded in principles of grace and public welfare, allows for mitigation of sentences, including in cases of judicial error, excessively harsh punishment, or compassion. Under Article 72, this power covers court-martial cases, Union law violations, and death penalties, with distinctions from the Governor's authority under Article 161. 

Acting on Cabinet advice, the President’s clemency decisions are typically immune to judicial review unless exercised arbitrarily. Landmark cases like Maru Ram (1981) and Shatrughan Chauhan (2014) have defined its scope, reinforcing that it must be just and timely, especially in death row cases to avoid prolonged mental distress for convicts.

What is Pardoning Power?

The power of pardon, rooted in principles of grace and humanity, serves as a means to balance justice with mercy, fostering political morality and public good by offering relief in cases of judicial error or questionable convictions. 

• In India, this power is vested in the President and Governors under Articles 72 and 161 of the Constitution. 
• Globally, pardoning practices have evolved from British royal prerogatives and ancient codes to executive powers in modern democracies, such as the U.S. President’s federal pardon authority and similar powers in the U.K. and Canada. 
• Although pardons can correct judicial imperfections, they remain controversial due to potential misuse, prompting many countries to adopt judicial reviews to prevent undue influence and safeguard the integrity of clemency decisions.

Pardoning Powers of the President 

The President’s pardoning power is an executive authority, separate from the Judiciary, and is not used as a court of appeal. It serves two main purposes one is to correct potential judicial errors, and the other is to provide relief from excessively harsh sentences. The President’s pardoning power includes the following:

• Pardon: A pardon completely erases the conviction and sentence, releasing the convict from all legal penalties, punishments, and disqualifications associated with the offence. It is the most comprehensive form of clemency, as it fully restores the individual’s legal status and rights.
• Commutation: Commutation replaces a harsher punishment with a lighter one. For example, a death sentence might be commuted to life imprisonment, which could then be reduced to rigorous or simple imprisonment. 
  • Unlike a pardon, it does not erase the conviction but modifies the punishment to a less severe form.
• Remission: Remission reduces the duration of a sentence while maintaining its original character. It shortens the sentence but does not alter the nature of the punishment or absolve the convict of guilt.
• Respite: A respite grants a lesser sentence than originally imposed, typically due to unique circumstances, such as the convict’s health or pregnancy. It temporarily or permanently reduces the severity of the sentence.
• Reprieve: A reprieve is a temporary suspension of a sentence, particularly a death sentence, allowing the convict time to seek a pardon or commutation. It is typically granted to enable further appeal or pardoning power applications.

Pardoning Powers of the President Principles

The pardoning powers of the President of India, as outlined in Article 72 of the Constitution, are governed by several key principles that define their scope, application, and limitations. The Supreme Court assessed the President’s pardoning power in various cases and established these key principles:

• The mercy petitioner has no entitlement to an oral hearing with the President.
• The President can re-evaluate the evidence and may arrive at a different conclusion from the courts.
• This power is exercised by the President based on advice from the Union Cabinet.
• The President is not obligated to provide reasons for his decision.
• Relief can be granted not only for excessively harsh sentences but also for clear mistakes.
• The Supreme Court need not prescribe specific guidelines for the President’s use of this power.
• Judicial review of the President's decision is limited and applies only in cases of arbitrariness, irrationality, bad faith, or discrimination.
• If a mercy petition has already been rejected, filing another petition does not warrant a stay.

Pardoning Powers of the President Constitutional Provisions

Article 72 of the Indian Constitution empowers the President to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute sentences in specific cases. This authority applies in three situations: when the punishment or sentence results from a court-martial, when the offence violates laws under the Union's executive power, and when the sentence involves the death penalty.

• Pardoning Power in Court Martial Cases: The President's authority includes intervening in sentences imposed by court-martials, reflecting the role of the supreme commander of the armed forces. 
  • This power ensures that military justice can be tempered with mercy, providing a crucial check within military tribunals.
• Pardoning Power over Union Laws: Article 72 extends the President’s power to offences under Union laws, underscoring the federal structure of governance. It ensures consistency in applying justice for offences impacting national interest or requiring uniformity across states, preserving coherence in executive actions.
• Pardoning Power in Death Sentence Cases: One of the most significant aspects of Article 72 is the President's power to grant pardon in death sentence cases. This provision reflects the Constitution's commitment to humanitarian values, allowing for review and potential mitigation of capital punishment.
• Limitations on Presidential Pardoning Power: Article 72 does not override other authorities. Union officers maintain their powers over court-martial sentences, and state executives can intervene in death sentence cases. This ensures a balance of power across branches of government.
• Procedure and Accountability: The President exercises pardoning power on the advice of the Home Minister, underscoring executive accountability. This procedural requirement ensures decisions regarding pardoning power are made with due deliberation and within the framework of government consultation.

Difference Between Pardoning Powers of President and Governor 

The pardoning powers of the President and the Governor in India are defined under Articles 72 and 161 of the Constitution, respectively. While both roles have the authority to grant pardon there are significant differences in the scope and application of these powers.

Pardoning Powers of the President Key Judgments

The pardoning powers of the President of India, as outlined in Article 72 of the Constitution, have been subject to various landmark judgments by the Supreme Court. These rulings have clarified the scope, limitations, and procedural aspects of exercising this power. Below are some significant cases that have shaped the understanding of presidential pardoning powers:

• Maru Ram v. Union of India (1981): In this case, the Supreme Court emphasized that the power to grant pardons must not be exercised arbitrarily and should adhere to a sensible approach. The Court ruled that public power should not be misused and must be exercised in a manner that is just and reasonable. 
  • This judgment highlighted the need for a balanced exercise of discretion in granting a Pardon.
• Kehar Singh v. Union of India (1989): This case involved Kehar Singh, who was convicted for the assassination of Prime Minister Indira Gandhi. The Supreme Court held that the President has the authority to independently scrutinise evidence and arrive at a different conclusion regarding guilt and sentence when considering a pardon. 
  • The ruling underscored that while the President formally holds this power, it is exercised based on the advice of the Council of Ministers, typically led by the Home Minister.
• Dhananjoy Chatterjee v. State of West Bengal (1994): In this landmark ruling, the Supreme Court reiterated that the President must act on the advice of the Council of Ministers while deciding on mercy pleas. The Court clarified that although the President has significant powers under Article 72, these powers are not absolute and must be exercised by constitutional provisions and established procedures.
• Shatrughan Chauhan v. Union of India (2014): This judgment addressed issues related to delays in executing death sentences and highlighted that such delays could lead to mental agony for convicts on death row. The Supreme Court emphasized that mercy petitions should be decided expeditiously. 
  • It noted that prolonged delays could amount to a violation of Article 21 (Right to Life) of the Constitution.
• Pawan Gupta v. Union of India (2020): In this case concerning one of the convicts in the Nirbhaya gang rape case, the Supreme Court ruled that there is no inherent right to seek a pardon or commutation, but if a mercy petition is filed, it must be considered fairly and justly by the President.

Pardoning Powers of the President FAQs

Q1. What are the 5 pardoning powers of the President?

Ans. The President can grant pardons, reprieves, respites, commutations and remissions of punishment under Article 72 of the Constitution.

Q2. What is Article 72 of the Indian Constitution?

Ans. Article 72 empowers the President to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in certain cases.

Q3. Are there limitations to pardoning powers?

Ans. Yes, the President must act on the advice of the Council of Ministers and cannot exercise this power independently.

Q4. What is meant by pardoning?

Ans. Pardoning refers to the legal act of absolving an individual from the consequences of a criminal conviction, including the conviction itself and the associated sentence.

Q5. What is Article 161?

Ans. Article 161 grants the Governor of a state the power to grant pardons, reprieves, respites, or remissions of punishment for offences against state laws.