The President’s Power of Pardon: Article 72 Explained

Courts can be wrong. Laws can be harsh. A person on death row may have only one door left to knock on. That door is Article 72. It lets the President forgive, pause or soften a punishment. The power is old, and it is still in the news whenever a mercy petition reaches Rashtrapati Bhavan.

1What does Article 72 say?

1.1 What are the exact words?

Article 72(1) says the President can grant pardons, reprieves, respites or remissions of punishment. The President can also suspend, remit or commute a sentence. The power applies to a person who is convicted of an offence. Three kinds of cases are named.

• (a) Punishment or sentence by a court martial.
• (b) Offence against a law on a matter in the Union’s executive power.
• (c) All cases where the sentence is death.

1.2 What do the other two clauses add?

Clause (2) protects the power of military officers. A law may let them suspend, remit or commute a court-martial sentence. Article 72 does not take that away. Clause (3) protects the Governor. A Governor can suspend, remit or commute a death sentence under any law that gives this power. Article 72 does not take that away either.

2What do the five clemency words mean?

2.1 What is the difference between pardon and the rest?

Exams love these five words. Learn them as a matched set. A pardon is the strongest. It wipes out the offence. The convict is treated as if no crime had been committed. The other four only change the sentence.

2.2 What does each of the four do?

• Reprieve: a temporary stay of a sentence, often a death sentence. It gives time to seek mercy.
• Respite: a lighter sentence because of special facts, such as a woman convict’s pregnancy.
• Remission: a shorter sentence, but the same kind. Two years of hard labour becomes one year of hard labour.
• Commutation: one kind of sentence swapped for a lighter kind. Death becomes life imprisonment.

A simple trick helps. Pardon removes the crime. Remission cuts the time. Commutation changes the type. Reprieve only pauses. Respite gives a softer sentence for a special reason.

3Who decides, and can courts check it?

3.1 Does the President decide alone?

No. The Constitution makes the President act on the advice of the Council of Ministers. This comes from Article 74. The Supreme Court said so in Maru Ram (1980) and again in Kehar Singh (1989). In real life, the Ministry of Home Affairs studies a mercy petition and the Council of Ministers advises the President.

3.2 Can the President look at the case again?

Yes. In Kehar Singh v. Union of India (1989), the Court said the President may look at the evidence afresh. The President can reach a view that differs from the court’s. This is not an appeal. The President does not call the court wrong. Mercy works on a different plane from a trial.

3.3 Can courts review the decision?

Only in a narrow way. In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Court held that clemency orders can be challenged. The grounds are arbitrariness, mala fides, irrelevant considerations and non-application of mind. Courts do not reopen the merits of the conviction.

The Court has also added another point. In Shatrughan Chauhan v. Union of India (2014), it held that unexplained and extreme delay in deciding a mercy petition can justify commuting a death sentence to life imprisonment. The reasoning rests on Article 21.

• Maru Ram, 1980 and Kehar Singh, 1989: advice of ministers; limited review.
• Epuru Sudhakar, 2006: arbitrary or mala fide orders can be challenged.
• Shatrughan Chauhan, 2014: unexplained delay can lead to commutation.

4How is the Governor’s power different?

4.1 What does the Governor get?

Article 161 gives the Governor a similar power. It reaches the matters on which the State’s executive power extends. So it covers offences under State law. It is a smaller power than the President’s.

4.2 Where is the line on death sentences?

Here many students slip. The Governor cannot pardon a death sentence. But the Governor can suspend, remit or commute it. Article 72(3) says so in plain words. The Governor also has no power over court-martial sentences. Only the President has that.

5Why does the power exist?

5.1 Where did this power come from?

The roots lie in the Crown’s prerogative of mercy in Britain. Indian law carried the idea through the colonial period. The framers gave it to the head of state. They did not give it to a minister or a judge.

5.2 What is it for?

Trials are fair, but they are not perfect. New facts may appear after a verdict. A sentence may be too harsh for the person. The law may have changed. Mercy is a safety valve for such cases. It does not make the court wrong. It works beside the court.

• Corrects rare errors the courts cannot.
• Softens a harsh sentence for human reasons.
• Keeps the final decision with the elected government.
• Stays under the Constitution, so it is open to narrow review.

6How has this topic been asked in exams?

6.1 What did the exams ask?

6.2 What is the exam angle?

• Trap: The President acts alone. No, on ministers’ advice.
• Trap: The Governor cannot touch a death sentence. The Governor cannot pardon it but can commute it.
• Fact: Only the President can pardon a court-martial sentence.
• Fact: Epuru Sudhakar, 2006: review on arbitrariness and mala fides.
• Method: Match the five words to what each does to the sentence.