Pardoning Powers of the President (Article 72 COI)

The Constitution of India lays down a comprehensive framework for governance, where the judiciary, legislature, and executive have defined powers. Among these, the President of India plays a unique role with several powers, one of which is the power to grant pardons. 

This power is outlined in Article 72 of the Constitution, which provides the President with the authority to grant clemency, including pardons, reprieves, respites, remissions, and commutations. The exercise of this power is an essential safeguard against judicial errors and overly harsh sentences, ensuring that mercy and justice can go hand in hand. 

This article provides a detailed and accessible analysis of the pardoning powers of the President, the principles guiding its exercise, and its limitations, as outlined in the Indian Constitution.

Constitutional Basis of Pardoning Power under Article 72

Article 72 of the Indian Constitution deals specifically with the pardoning powers of the President. It gives the President the authority to grant pardons, reprieves, respites, and remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of an offence. This power is granted in three key situations:

1. Court-martial sentences – the President can exercise his power over sentences resulting from military tribunals (court-martials).
2. Offences under Union laws – the President has the power to grant clemency in cases where the offence is against laws relating to matters under the Union’s executive power.
3. Death sentences – the most significant exercise of this power is over death sentences, where the President can grant a full pardon or commute the sentence.

While Article 72 gives the President sweeping authority, it also ensures a balance by outlining specific limitations and procedural requirements, particularly the role of the Council of Ministers and judicial review.

Forms of Clemency under Article 72

The pardoning power can take various forms, each serving a distinct function. These forms are designed to address different levels of judicial error or to mitigate excessively harsh punishment. Here is an explanation of each form:

Pardon

A pardon is the most complete form of clemency. When the President grants a pardon, the individual’s conviction and sentence are erased entirely. This form of clemency restores the individual to a legal status as though the crime had never been committed. It is typically granted in cases where there has been a clear miscarriage of justice or when the punishment is too harsh for the offence committed.

Commutation

Commutation involves the substitution of a harsher punishment with a lighter one. For example, a death sentence may be commuted to life imprisonment. Although the conviction remains on record, the punishment is altered to something less severe. This can occur when the President believes that the sentence is disproportionate to the nature of the crime or the circumstances of the convict.

Remission

A remission reduces the duration of a sentence without changing its character. For instance, if a convict is serving a rigorous imprisonment of 10 years, the President may reduce it to 5 years, but the nature of the punishment remains the same. Remission is often granted when the convict has served a significant portion of their sentence, or in cases of overcrowded prisons.

Respite

A respite is a temporary reduction in the severity of a punishment, typically due to special circumstances of the convict, such as health issues, pregnancy, or other personal conditions that may justify a reduced sentence. This form of clemency reflects the President’s role in ensuring that justice is administered in a compassionate and humane manner.

Reprieve

A reprieve is a temporary suspension of a sentence, particularly in cases of death sentences. It provides the convict with time to seek further legal remedies or to file a mercy petition for clemency. The reprieve gives the President the opportunity to reconsider the case or allow time for other proceedings, such as an appeal or new evidence coming to light.

The Role of the Council of Ministers

Although Article 72 grants the President the power to grant clemency, this power is not exercised independently by the President. The President must act in accordance with the advice of the Council of Ministers, headed by the Prime Minister, as stipulated by Article 74 of the Constitution. This ensures that decisions regarding clemency are not arbitrary or personal, but reflect the collective responsibility of the executive.

Under Article 74, the President is required to seek advice from the Council of Ministers and act in accordance with it. However, if the President is not satisfied with the advice, he can return it once for reconsideration. If the Cabinet’s advice remains unchanged, the President must accept it. This process ensures that there is a safeguard against misuse of the pardoning power, as it is subject to collective and political accountability.

Limitations of the Pardoning Power

Although the President has significant pardoning powers, there are important limitations on how and when this power can be used. Some of the key limitations include:

Judicial Review

The judicial review of the President’s decision is a crucial check on the exercise of pardoning power. The Supreme Court has clarified that while the President’s decision is generally not open to judicial scrutiny, judicial review can be exercised in cases where the decision is arbitrary, irrational, or made in bad faith. The courts have the power to intervene if the President’s action is found to be against the principles of justice and fairness.

Advice of the Council of Ministers

The President must act on the advice of the Council of Ministers. The President does not have the discretion to ignore or override the advice provided by the Council, except in cases where the advice is returned for reconsideration. This ensures that clemency decisions are made with the input and accountability of the elected government.

Scope of Power

The scope of the President’s pardoning power is limited to specific types of cases:

• It applies to cases of offences against Union laws.
• It does not extend to offences under State laws, except in certain cases where the Governor of the State has similar powers under Article 161.
• The President’s clemency power is not applicable to all cases; it is usually exercised in cases where the conviction appears to be flawed, or where the punishment is deemed excessively harsh.

Death Sentence

One of the most significant uses of the pardoning power is in the case of death sentences. While the President can grant full clemency, including a pardon, reprieve, or commutation in death penalty cases, this power is exercised with extreme caution. The President’s decision in such cases is influenced by the nature of the offence, the convict’s mental state, and the public interest.

Landmark Supreme Court Judgements

The exercise of pardoning power by the President has been subject to several landmark judgements by the Supreme Court. These cases have helped clarify the scope and limitations of this power.

Maru Ram v. Union of India (1981)

In Maru Ram v. Union of India case, the Supreme Court emphasised that the President’s clemency powers must not be exercised arbitrarily. The Court held that clemency must be exercised in a manner that is just and reasonable, and that public power must not be misused. This case highlighted the need for a balanced approach in the exercise of pardoning power.

Kehar Singh v. Union of India (1989)

In the Kehar Singh case, the convict was involved in the assassination of Prime Minister Indira Gandhi. The Supreme Court ruled that the President has the authority to independently scrutinise evidence and arrive at a different conclusion from the courts when considering a pardon. The Court also reiterated that this power must be exercised in consultation with the Council of Ministers.

Shatrughan Chauhan v. Union of India (2014)

Shatrughan Chauhan v. Union of India case dealt with delays in death penalty cases. The Supreme Court ruled that prolonged delays in executing death sentences could lead to mental agony for the convict, which could violate their right to life under Article 21 of the Constitution. The Court stressed the need for mercy petitions to be decided expeditiously, particularly in death sentence cases.

Pawan Gupta v. Union of India (2020)

In Pawan Gupta v. Union of India, the Supreme Court ruled that while there is no inherent right to seek a pardon or commutation, any mercy petition filed must be considered fairly and justly by the President. This case emphasised the need for fairness and transparency in the clemency process.

Comparing Pardoning Power of President vs. Governor

While the President has the power to grant clemency under Article 72, Governors have similar powers under Article 161. However, the powers of the President and the Governor differ significantly in scope and application:

This distinction highlights the federal structure of India, with the President handling national matters, including military and death penalty cases, while Governors handle state-level clemency requests.

Conclusion

The pardoning power of the President, as enshrined in Article 72 of the Indian Constitution, serves as an important mechanism for ensuring that justice is tempered with mercy. While the power is substantial, it is not absolute. It is governed by principles of fairness, justice, and executive accountability, as outlined by the Council of Ministers and subject to judicial review in certain circumstances. The President’s role in granting clemency, particularly in death sentence cases, carries immense responsibility.