Pardoning Power of the President (Article 72)

President pardoning power under Article 72 of the Constitution allows the President to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence, in three specific categories of cases.

When the Power Applies

Article 72(1) confines the President's clemency power to cases where:

• (a) the punishment or sentence is by a Court Martial (a military court);
• the offence is against a law relating to a matter to which the Union's executive power extends; or
• the sentence is a sentence of death.

This is a judicial-type power exercised by the head of state, distinct from and independent of the ordinary courts. The President does not, in exercising this power, sit as a further court of appeal reviewing the correctness of a conviction; the clemency power instead serves two purposes — correcting possible judicial errors, and offering relief where a sentence is considered unduly harsh in the circumstances.

The Forms of Clemency

Article 72 covers several distinct forms of relief, each with a different legal effect:

Exercised on the Advice of the Council of Ministers

Like other presidential functions, the pardoning power is not exercised at the President's personal discretion but on the advice of the Union Council of Ministers. This was affirmed by the Supreme Court in the Maru Ram case (1980) and reiterated in the Kehar Singh case (1988). In Kehar Singh, the Court also clarified that a person seeking mercy has no right to an oral hearing before the President, that the President may examine the evidence afresh and take a view different from that taken by the courts, and that the Supreme Court need not lay down specific guidelines for the exercise of this power.

Limited Judicial Review

Because the pardoning power is exercised on ministerial advice and involves an assessment of facts and circumstances, courts have generally been reluctant to review its exercise. However, the Kehar Singh and later rulings establish that the decision is not entirely beyond judicial scrutiny — it can be examined where the exercise of the power is shown to be irrational, mala fide, arbitrary, or discriminatory.

How Article 72 Differs from the Governor's Power (Article 161)

State Governors possess a broadly similar pardoning power under Article 161, but with two important differences from the President's power under Article 72:

1. Only the President can pardon a sentence imposed by a Court Martial; the Governor has no such power.
2. Only the President can pardon a death sentence, even where the death sentence arises under a state law. The Governor, however, retains the power to suspend, remit, or commute a death sentence — so both authorities have concurrent power over suspension, remission, and commutation of a death sentence, while the power to fully pardon it rests with the President alone.

UPSC Relevance

Prelims

• Article 72 covers three categories: court-martial sentences, offences against Union law, and death sentences.
• Distinguish the five forms of clemency: pardon, commutation, remission, respite, and reprieve.
• Only the President (not the Governor) can pardon a death sentence or a court-martial sentence.
• The power is exercised on the advice of the Council of Ministers, per Maru Ram (1980) and Kehar Singh (1988).

Mains

• Discuss the scope and limits of the President's pardoning power under Article 72, with reference to the Kehar Singh case.
• Compare the pardoning powers of the President under Article 72 with those of the Governor under Article 161, and analyse why the Constitution reserves certain powers exclusively to the President.

FAQ

Q1. In which cases can the President grant a pardon under Article 72? In cases involving Court Martial sentences, offences against laws to which the Union's executive power extends, and death sentences.

Q2. What is the difference between a pardon and a commutation? A pardon removes both the sentence and the conviction entirely; a commutation merely replaces the punishment with a lighter form, such as death being commuted to imprisonment.

Q3. Can the Governor of a state pardon a death sentence? No. Only the President can grant a full pardon for a death sentence; the Governor can suspend, remit, or commute such a sentence but cannot pardon it outright.

Q4. Is the President's pardoning power subject to judicial review? Generally not, but courts have held it can be reviewed if the exercise of the power is shown to be irrational, mala fide, arbitrary, or discriminatory, as clarified in the Kehar Singh case.

Q5. Does the President exercise the pardoning power personally or on advice? On the advice of the Union Council of Ministers, as held in the Maru Ram and Kehar Singh cases.

Quick Revision

• Article 72: President's power to pardon, commute, remit, respite, or reprieve sentences.
• Applies to: court-martial sentences, Union-law offences, and death sentences.
• Pardon = removes sentence and conviction; commutation = lighter punishment form; remission = reduced duration; respite = lesser sentence for special reasons; reprieve = temporary stay of execution.
• Exercised on Council of Ministers' advice (Maru Ram, 1980; Kehar Singh, 1988).
• Judicial review possible only for irrationality, mala fide, arbitrariness, or discrimination.
• Only the President can pardon a death sentence or a court-martial sentence; the Governor cannot.

Sources

• The Constitution of India, Article 72 — https://legislative.gov.in/constitution-of-india
• The Constitution of India, Article 161 — https://legislative.gov.in/constitution-of-india
• Supreme Court of India, Kehar Singh v. Union of India (1989) — https://main.sci.gov.in
• Supreme Court of India, Maru Ram v. Union of India (1981) — https://main.sci.gov.in

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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