The pardoning power of the President is one of the most distinctive executive powers in the Indian Constitution. Article 72 empowers the President to grant pardons, reprieves, respites or remissions of punishment, and to suspend, remit or commute the sentence of any person convicted of an offence, in certain categories of cases. A parallel power under Article 161 is given to the Governor of a State. The idea behind these provisions is that the judicial process, however careful, can occasionally produce results that call for mercy or correction.
This power is also among the most debated, because it touches matters of life and liberty, particularly in cases involving the death sentence. This article explains the constitutional text, the five forms of clemency, the difference between the President’s and the Governor’s powers, how mercy petitions are processed, and how the Supreme Court has reviewed the exercise of this power in cases such as Kehar Singh and Shatrughan Chauhan.
| Feature | Detail |
|---|---|
| Constitutional provision (President) | Article 72, in Part V of the Constitution |
| Constitutional provision (Governor) | Article 161, in Part VI of the Constitution |
| Five forms of clemency | Pardon, commutation, remission, respite and reprieve |
| Exercised on the advice of | Council of Ministers (the Union Government for the President) |
| Death sentence | President can pardon; Governor cannot pardon but can suspend, remit or commute |
| Court martial | Covered by the President; not by the Governor |
| Key judgments | Maru Ram (1980), Kehar Singh (1989), Epuru Sudhakar (2006), Shatrughan Chauhan (2014) |
| Nature of power | Executive, discretionary but subject to limited judicial review |
Origin and Purpose of the Pardoning Power
The power to pardon has deep historical roots. In England it was an attribute of the Crown, exercised as an act of royal mercy. In the United States the Constitution gives the President the power to grant reprieves and pardons for offences against the United States. The framers of the Indian Constitution drew on this tradition, and also on the provisions of the Government of India Act, 1935, which gave the Governor-General and Governors limited powers of clemency.
The purposes of the power are several. It acts as a final safeguard against miscarriage of justice, in cases where new facts emerge or where a sentence appears disproportionate. It allows humanitarian considerations, such as old age, serious illness or exceptional circumstances, to be taken into account. And it provides a mechanism to correct or soften the effect of rigid punishment where the law leaves little room for discretion.
Importantly, the power is not meant to act as a court of appeal. The judicial verdict stands as a determination of guilt. Clemency operates outside the courtroom, as an act of the executive, and does not overrule the finding that an offence was committed unless the form of clemency is a full pardon.
Article 72: The President’s Power
Article 72(1) provides that 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 in the following three situations.
- In all cases where the punishment or sentence is by a Court Martial.
- In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.
- In all cases where the sentence is a sentence of death.
Article 72(2) clarifies that the power of the President under clause (1) does not affect the power of any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial, which is exercisable under any law. Article 72(3) states that the President’s power in the case of death sentences does not affect the power of the Governor of a State to suspend, remit or commute a death sentence under any law for the time being in force.
The three categories mean that the President’s reach is wide. It extends to military justice, to offences under Union laws, and to every death sentence, whether passed under a central or a State law.
Article 161: The Governor’s Power
Article 161 provides that the Governor of a State 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 against any law relating to a matter to which the executive power of the State extends. The subject-matter test is thus the same as that for the President, but it is tied to State matters instead of Union matters.
The Governor’s power is important in practice because a large number of criminal law matters are administered by State governments and cover offences in the Indian Penal Code (now the Bharatiya Nyaya Sanhita) which are dealt with by State authorities. As a result, the Governor’s clemency power is invoked in many remission and release matters concerning prisoners in State jails.
The Governor, like the President, acts on the aid and advice of the Council of Ministers, in this case the State Council of Ministers headed by the Chief Minister. The Supreme Court has held that the power is not a personal prerogative but a constitutional power to be exercised on advice, subject to the limits of judicial review discussed later.
The Five Forms of Clemency Explained
Articles 72 and 161 use several terms. They are related but distinct, and a clear understanding of each is essential for students of the Constitution.
| Form | Meaning | Effect |
|---|---|---|
| Pardon | Complete forgiveness of the offence | Removes both the sentence and the conviction; the person is treated as if never convicted |
| Commutation | Substitution of one form of punishment with a lighter form | For example, death sentence changed to life imprisonment |
| Remission | Reduction of the quantum of sentence without changing its character | For example, a sentence of ten years reduced to five years |
| Respite | Awarding a lesser sentence than originally awarded because of special facts | For example, the physical condition of the convict or pregnancy of a woman offender |
| Reprieve | Temporary suspension of the execution of a sentence | Gives the convict time to seek pardon or commutation, commonly applied to death sentences |
Taken together, these forms create a spectrum ranging from complete forgiveness (pardon) to temporary relief (reprieve). Pardon is the most far-reaching because it erases the legal consequences of the conviction, whereas the others merely alter or postpone punishment while leaving the conviction on record.
President vs Governor: Differences in Scope
Although the two powers look similar, they differ in important ways. The comparison below highlights the main distinctions.
| Aspect | President (Article 72) | Governor (Article 161) |
|---|---|---|
| Court martial sentences | Can pardon, remit, commute or suspend | No power in respect of court martial |
| Death sentence | Can grant pardon, as well as suspend, remit or commute | Cannot pardon a death sentence, but can suspend, remit or commute it |
| Subject matter of law | Matters on which the executive power of the Union extends | Matters on which the executive power of the State extends |
| Advice | Union Council of Ministers | State Council of Ministers |
Two key distinctions
The first is the court martial. Only the President can exercise clemency over sentences passed by a military court, apart from the powers of certain military officers under service laws. The second is the death sentence. A Governor can commute a death sentence to imprisonment for life, or suspend it, but cannot grant a full pardon. This is why a person under sentence of death passed by a State court normally has recourse to both authorities.
Mercy Petitions: How the Process Works
A person who seeks clemency submits a mercy petition. In case of the President, the petition is addressed to the President and is forwarded to the Union Ministry of Home Affairs, which processes it. The Ministry usually seeks the views of the State Government concerned, examines the records of the case, and prepares its advice. This advice is submitted to the President, who is bound under Article 74 to act in accordance with the aid and advice of the Council of Ministers, although the President may ask the Council to reconsider once.
Typical steps
- The convict, a relative or another person on the convict’s behalf submits the petition, often after the Supreme Court has dismissed appeals and review petitions.
- The Governor of the State may consider the petition first in State cases, particularly for death sentences.
- The Home Ministry collects records, comments from the State and prison authorities, and prepares a recommendation.
- The President takes a decision on the aid and advice, and the order is communicated to the authorities.
- If clemency is refused, the sentence can be carried out, subject to the legal safeguards that apply to the execution of death sentences.
There is no fixed timetable for deciding such petitions in the Constitution, and the question of delay has become an important legal issue, as discussed below.
Judicial Review: Maru Ram and Kehar Singh
For many years the courts treated clemency as an act of grace that was not open to scrutiny. That view has changed, and the Supreme Court has laid down that the power is subject to constitutional limits.
Maru Ram v Union of India (1980)
In this case, the Court held that the powers under Articles 72 and 161 are to be exercised by the Central and State Governments, not by the President or the Governor personally, and must be used on the advice of the Council of Ministers. It also emphasised that the power must be exercised in a fair and non-arbitrary manner.
Kehar Singh v Union of India (1989)
Kehar Singh arose from the conviction of one of the persons held guilty in the conspiracy connected with the assassination of Prime Minister Indira Gandhi. The Court held that the President can, in considering a mercy petition, examine the evidence afresh and arrive at a conclusion different from that of the court. This does not amount to sitting in appeal over the judicial verdict, but is the exercise of a separate constitutional power. The Court also held that the petitioner has no right to an oral hearing before the President. At the same time, the Court indicated that the exercise of the power is subject to judicial review on limited grounds, and that it must be based on the advice of the Council of Ministers.
These two decisions established the core doctrine, namely that the power is a constitutional responsibility, exercised on advice, and not a matter of personal discretion.
Judicial Review: Epuru Sudhakar, Swaran Singh and Shatrughan Chauhan
Later decisions broadened the scope of review and strengthened procedural fairness.
- Swaran Singh v State of Uttar Pradesh (1998): The Court set aside a Governor’s order of remission because relevant materials had not been considered, stressing that the power cannot be exercised arbitrarily.
- Epuru Sudhakar v Government of Andhra Pradesh (2006): The Court held that the exercise of clemency by the President or Governor is open to judicial review on limited grounds, such as the order being passed without application of mind, being mala fide, or being based on wholly irrelevant or extraneous considerations. The Court observed that the power is not a private act of grace but a constitutional duty.
- Shatrughan Chauhan v Union of India (2014): The Court held that undue and unexplained delay in the disposal of mercy petitions is a ground for commuting a death sentence to life imprisonment. It also laid down guidelines for the protection of death row convicts, including legal aid, supply of documents to the convict, prompt communication of the decision to the convict and family, and a reasonable gap before execution so that the convict can meet family members and take legal steps.
Shatrughan Chauhan is often cited as an important development in recognising that the right to life under Article 21 continues to operate for a person awaiting execution. The judgment also confirmed that mental illness and prolonged solitary confinement are relevant factors that may justify commutation.
Related Legal Provisions and Remission by Executive Authorities
The constitutional power is not the only route to a reduction of sentence. Ordinary criminal procedure laws also contain statutory provisions that allow the appropriate Government to suspend or remit sentences. Section 432 of the Code of Criminal Procedure, 1973 gave this authority to the appropriate Government, and the corresponding provisions now appear in the Bharatiya Nagarik Suraksha Sanhita, 2023. These provisions allow remission, subject to conditions, and are widely used in prison administration.
The Indian Penal Code, in Sections 54 and 55, also recognised the power of the appropriate Government to commute a death sentence or a sentence of imprisonment for life, and the equivalent provisions are carried forward in the Bharatiya Nyaya Sanhita, 2023. Courts have clarified that these statutory powers operate alongside, and cannot override, the constitutional powers in Articles 72 and 161.
The Supreme Court has held that the statutory power is subject to the rule of law and to the principles governing fairness. Where remission is granted to prisoners serving life sentences, the Court has insisted that decisions be reasoned, based on relevant material and consistent with applicable policies, and open to challenge if they are arbitrary.
Debates, Safeguards and Conclusion
The pardoning power raises persistent questions in public discussion. Some argue that the power ought to be exercised with greater transparency, with reasons given for decisions, so that citizens can understand the basis for them. Others point out that the Constitution has chosen to leave clemency to the executive, and that judicial review already provides adequate checks against arbitrariness. There is also a continuing conversation, in legal and policy circles, about the time taken to decide mercy petitions and about the death penalty itself.
Whatever the position taken, the structure is clear. Articles 72 and 161 create a constitutional safety valve in the criminal justice system, which allows mercy and correction to operate when the ordinary legal process has run its course. The President acts on the advice of the Union Council of Ministers, the Governor on that of the State Council of Ministers, and both are bound by the limits that the Supreme Court has laid down. The five forms of clemency, from pardon to reprieve, give the executive a graded set of tools for dealing with a wide range of situations.
Frequently Asked Questions
Which article of the Constitution gives the President the power to pardon?
Article 72 gives the President the power to grant pardons, reprieves, respites and remissions, and to suspend, remit or commute sentences. It covers court martial sentences, offences against Union laws and all death sentences.
What are the five forms of the pardoning power?
They are pardon, commutation, remission, respite and reprieve. A pardon removes both the sentence and the conviction, commutation replaces a punishment with a lighter one, remission reduces the length of a sentence, respite gives a lesser sentence because of special facts, and reprieve temporarily stops an execution.
How does the Governor’s power differ from the President’s power?
The Governor, under Article 161, cannot pardon a death sentence, though the Governor can suspend, remit or commute it. The Governor also has no power over sentences by a court martial, and is limited to offences against laws on which the State’s executive power extends.
Does the President act on personal discretion while deciding a mercy petition?
No. The Supreme Court held in Maru Ram and Kehar Singh that the power must be exercised on the aid and advice of the Council of Ministers. The President may send the advice back for reconsideration once, but must act on it when it is resubmitted.
Can the courts review the decision on a mercy petition?
Yes, on limited grounds. Under Epuru Sudhakar, a clemency order can be reviewed if it was passed without application of mind, was mala fide, or relied on irrelevant considerations. In Shatrughan Chauhan, the Supreme Court held that undue delay in deciding a mercy petition can justify commutation of a death sentence.
Is a pardon different from commutation?
Yes. A pardon wipes out the conviction and the sentence altogether, whereas commutation changes the sentence into a lighter form of punishment, such as converting a death sentence into life imprisonment, while the conviction remains.
