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Pardoning Power of the President: Constitutional Provisions, Rationale, Concerns and Way Forward

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Pardoning Power of the President: Rationale, Concerns and Way Forward

The pardoning power of the President is an important constitutional mechanism that introduces mercy, humanity and public policy considerations into the administration of criminal justice. While courts determine guilt and impose punishment according to law, the Constitution recognises that exceptional circumstances may require relief beyond the ordinary judicial process.

Constitutional Provisions

Article 72 

  • Article 72 empowers the President to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of a person convicted of an offence.
  • The power extends to:
    • Cases where the punishment or sentence is imposed by a Court Martial.
    • Offences against laws relating to matters to which the executive power of the Union extends.
    • All cases where the sentence is a sentence of death

Exercised on Aid and Advice

  • The President does not exercise the pardoning power as a matter of personal discretion.
  • The power is exercised on the aid and advice of the Union Council of Ministers.

Forms of Pardoning power

Pardon 

  • It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications 

Commutation 

  • Substitutes one form of punishment with a lighter form of punishment.
  • For example, a death sentence may be commuted to imprisonment for life. 

Remission 

  • Reduces the period of the sentence without changing its character.
  • For example, a sentence of ten years may be reduced to a shorter period. 

Respite 

  • Awards a lesser sentence because of special circumstances relating to the offender. 

Reprieve 

  • It implies a stay of the execution of a sentence (especially that of death) for a temporary period. 
  • Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Nature of the Pardoning Power

  • Executive and Constitutional in Nature 
    • The pardoning power is a constitutional executive power distinct from the judicial power exercised by courts.
    • It provides relief even after the judicial process has reached finality. 
  • Not an Appellate Power 
    • The pardoning power of the President is independent of the Judiciary. The President while exercising this power, does not sit as a court of appeal 
    • While considering clemency, the President is constitutionally competent to examine the merits and circumstances of the case. 
      • In Kehar Singh v. Union of India, the Supreme Court held that the President possesses the authority to independently scrutinize evidence and arrive at a different conclusion regarding the guilt and sentence of the accused. 
  • Subject to Limited Judicial Review 
    • Judicial review of the President’s decision is limited and applies only in cases of arbitrariness, irrationality, bad faith, or discrimination.

Rationale and Significance of Pardoning Power

  • Humanises the Criminal Justice System 
    • The rigid application of law may occasionally produce consequences that appear disproportionately harsh in exceptional individual circumstances.
    • Clemency provides a constitutional space for mercy and compassion within an otherwise rule-based criminal justice system. 
  • Corrects Possible Miscarriage of Justice 
    • No judicial system is entirely immune from human error.
    • The pardoning power provides an additional constitutional safeguard for correcting judicial errors
  • Tempering justice with mercy 
    • Law operates through general rules that cannot always account for the specific circumstances of individual cases — the pardoning power allows the constitutional executive to consider factors of human sympathy, changed circumstances, and special vulnerability that the formal legal process may not accommodate 
    • Clemency may take into account broader considerations such as humanitarian circumstances, subsequent developments and relevant considerations of public welfare that may fall outside the ordinary judicial process. 
  • Humanitarian considerations 
    • Terminal illness, old age, mental illness, pregnancy, and other humanitarian factors may make the continued execution of a sentence cruel or disproportionate — the pardoning power provides a constitutional mechanism for responding to these human realities 
  • Political and social context 
    • In certain situations, particularly cases with political dimensions, national reconciliation needs, or long-standing controversies — executive clemency through the pardoning power can serve important social purposes that lie beyond the scope of the judicial process 
    • Certain exceptional circumstances may involve considerations of wider public interest or State policy that a court deciding individual criminal liability may not be institutionally positioned to assess. 
  • Final check before execution 
    • The pardoning power serves as the last constitutional safeguard before the irrevocable act of execution — ensuring that the state’s most extreme sanction is reviewed at the highest constitutional level before it is carried out

Issues and Concerns

  • Delay in Disposal of Mercy Petitions 
    • Mercy petitions, particularly in death penalty cases, have at times remained pending for prolonged periods.
    • Such delays subject prisoners to prolonged uncertainty and psychological suffering while awaiting a final decision. 
      • No statutory or constitutional time limit exists for deciding mercy petitions — creating a structural vacuum that enables indefinite deferral of the most consequential executive decisions
        • Article 72 does not prescribe a timeframe for executive decisions. Consequently, petitions often take years to resolve, which the sources describe as “painful and torturous” for death row inmates 
      • Delay itself becomes a form of punishment — convicts living on death row for years in the uncertainty of an undecided mercy petition — a psychological and humanitarian cruelty that the Constitution did not intend
    • In Shatrughan Chauhan v. Union of India (2014), the Supreme Court held that undue delay in deciding mercy petitions can be a ground for commutation of a death sentence to life imprisonment. 
  • Lack of Transparent Criteria 
    • No publicly stated, codified criteria exist for how mercy petitions are evaluated — what factors are considered, what weight is given to different circumstances, and how decisions are reached — making the process opaque and its outcomes unpredictable 
    • Absence of Guidelines  — There are no statutory or constitutional guidelines governing the exercise of this wide discretion. This lack of a “rule of thumb” leads to delays and potential inconsistency 
    • Lack of Uniform Standards — Clemency necessarily involves consideration of the distinctive circumstances of individual cases.
      • However, the absence of rigid criteria can also create concerns regarding inconsistency in outcomes. 
  • Procedural Deficiencies 
    • No Right to be Heard: Applicants have no right to a personal hearing or representation by legal counsel.
    • Lack of Transparency: The executive is not required to provide a reasoned decision for granting or refusing clemency.
      • Mercy decisions may lack sufficient publicly available explanation of the considerations underlying acceptance or rejection. This can make it difficult to assess consistency and fairness across cases. 
    • Information Gaps: There are often doubts regarding whether the President is properly briefed, and prisoners cannot correct or rebut adverse information used against them
  • Possibility of Political Considerations 
    • Since the President acts on ministerial advice, concerns may arise that political considerations could influence decisions on clemency. 
      • Political Interference — Because the power is exercised on the advice of the Council of Ministers, it is susceptible to political influence 
  • Distinction Between President and Governor Jurisdiction 
    • Confusion and disputes have arisen about whether particular cases fall under Article 72 (President) or Article 161 (Governor) — particularly in cases involving both central and state law elements

Supreme Court Judgements

Maru Ram v. Union of India, 1981

  • The Supreme Court held that the President under Article 72 and the Governor under Article 161 exercise their clemency powers on the aid and advice of the respective Council of Ministers.
  • The power cannot be exercised arbitrarily or on wholly irrelevant considerations.

Kehar Singh v. Union of India, 1989

  • Pardoning power is broad, includes revisiting merits of the case; not judicial in nature but subject to limited review on limited grounds such as lack of jurisdiction, arbitrary exercise, or mala fide intent.
  • The Court desisted from laying down specific guidelines, stating that Article 72 is of the "widest amplitude" and must remain flexible to handle myriad categories of cases.

Swaran Singh v. State of UP

  • In this case, the Supreme Court quashed the Governor's order granting remission due to lack of vital information provided to the Governor, highlighting the necessity for informed decision-making.

Satpal v. State of Haryana (2000)

  • The Supreme Court held that the Governor had acted without adequate information and consideration; the Court quashed the pardon order, emphasizing the necessity for informed and reasoned exercise of such executive powers.
  • Mercy decision must consider post-conviction behaviour; absence of such consideration can invalidate the pardon.

Epuru Sudhakar v. Government of Andhra Pradesh, 2006

  • The clemency powers vested with the Governor and the President under Article 161 and Article 72 respectively were held to fall under the purview of review by the judiciary.
  • A clemency decision may be challenged where:
    • There is non-application of mind.
    • The decision is mala fide.
    • It is based on extraneous or wholly irrelevant considerations.
    • Relevant material has been kept out of consideration.
    • The decision suffers from arbitrariness.

Shatrughan Chauhan v. Union of India (2014)

  • The Court held that undue delay in deciding mercy petitions can be a ground for commuting death sentences.

Way Forward

  • Establishing time limits 
    • A statutory or constitutional amendment prescribing a maximum time limit for deciding mercy petitions — with automatic escalation mechanisms if the deadline is missed — ending the constitutional vacuum that enables indefinite delay
  • Codifying evaluation criteria 
    • Developing and publicly disclosing a set of criteria and factors that guide mercy petition evaluation — bringing transparency and predictability to the process without eliminating the discretion that is the pardoning power’s essential feature
  • Public Procedures
    • The Home Ministry should make the procedures governing mercy petitions public 
  • Structured review process 
    • Establishing a dedicated, expert advisory body to assist in the evaluation of mercy petitions — comprising legal experts, mental health professionals, and humanitarian representatives — improving the quality and consistency of petition review
  • Reasoned decisions 
    • Developing a practice of providing brief, publicly disclosed reasons for decisions on mercy petitions — improving accountability without compromising the power’s constitutional character
  • Right to Personal Appearance
    • Entitling all applicants to a personal hearing before the decision-maker 
  • Mental health assessment 
    • Mandatory psychiatric assessment of all death row convicts as part of the mercy petition process — ensuring that mental illness, intellectual disability, and psychological vulnerability receive structured, expert consideration
  • Depoliticising the process 
    • Developing conventions or guidelines ensuring that the cabinet’s advice on mercy petitions is based on humanitarian and legal grounds rather than political considerations — insulating this most consequential exercise of executive clemency from partisan motivation

The pardoning power reflects the constitutional recognition that justice cannot always be reduced to the mechanical execution of a judicial sentence. It enables the State to temper law with mercy, consider exceptional humanitarian circumstances and provide a final safeguard against irreversible injustice. At the same time, because clemency is exercised in the name of the highest constitutional office, its legitimacy depends upon fairness, timely decision-making, relevant considerations and freedom from political arbitrariness. The constitutional objective is therefore not to undermine judicial justice, but to complement it with a carefully controlled space for mercy, humanity and constitutional conscience.

Sample Mains Question

1.The pardoning power of the President is not an appellate jurisdiction but a constitutional mechanism for tempering justice with mercy. Discuss.

15 Marks | 250 Words

2.Examine the scope and nature of the President’s pardoning power under Article 72. On what grounds can its exercise be judicially reviewed?

15 Marks | 250 Words

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