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Pardoning Powers


A pardon is a mercy, forgiveness, or clemency act. The concept of pardon is a relic from a time when an omnipotent king had the authority to punish or pardon any punishment. It became a symbol of a god-like king wielding power over his subjects' lives and deaths.

The requirement to vesting such power in a body other than the judiciary has always been acknowledged. The power of pardon exists to prevent injustice, whether from severe, unjust laws or from judgements that result in injustice.

The Constitution of India comprises the three branches of the government namely the legislative, the executive and the judiciary. The Constitution gives the president, India's first citizen, a variety of functions as the head of the executive. According to Article 72 of the Indian Constitution, the President has the authority to commute death sentences and to give pardons, reprieves, respites, or remissions of punishments for those who have been convicted of crimes under the Indian Penal Code, 1860. However, the ability of the Governor to commute a sentence under Article 161 of the Indian Constitution does not apply to death penalties.

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

Commutation: Commutation refers to the substitution of one type of punishment with a less severe one. A death sentence, for instance, may be commuted to a term of harsh imprisonment, which may then be commuted to a term of simple imprisonment.

Remission: Remission refers to the reduction of a sentence without altering its nature. For instance, a sentence of two years of strict confinement may be reduced to one year of strict confinement.

Respite: Respite refers to the substitution of a shorter sentence for one that was initially imposed owing to a particular circumstance, such as a prisoner's physical impairment or a female offender's pregnancy.

Reprieve: Reprieve means a temporary stay of execution of a punishment (particularly the death penalty). Its objective is to give the criminal time to seek a presidential pardon or commutation.

What is the difference between the President's and Governor's pardoning powers?

The scope of the President's pardoning power under Article 72 is broader than the Governor's pardoning power under Article 161, which differs in two ways:

  • The President's authority to give pardons extends to cases in where the punishment or sentence was imposed by a Court Martial, although Article 161 does not grant the Governor similar authority.

  • The President has the right to grant pardons in all situations where the sentence imposed is death, whereas the Governor's pardoning authority does not extend to death penalty cases.

Is it Absolute?

The President's pardoning authority is not absolute. It should be exercised by the President with Council of Ministers advice. Article 74(1), however, allows the President a one reconsideration opportunity. If the Council of Ministers voted against it, the President has no choice but to adhere to that decision. In a number of instances, the Supreme Court has held that the President must act in accordance with the advise of the Council of Ministers. These include Maru Ram v. Union of India, (1980), the Supreme Court held that the power under Article 72 is not an independent power of the President but it is to be exercised on the advice of the Central Government and that the advice of the Government binds the head of the Republic to act upon it.

The case of Epuru Sudhakar v. Government of Andhra Pradesh (2006) established a well-known principle holding that Supreme Courts and High Courts have limited judicial scrutiny while exercising clemency powers. It is subject to limited judicial review.

The President or Governor's decision to grant pardon might be challenged on the following grounds:

  • The order has been passed without application of mind.

  • The order passed is mala fide.

  • The order passed is wholly irrelevant and extraneous.

  • Relevant material has not been considered.

  • The order passed suffers from arbitrariness.

Critical Analysis

In the past, pleas for clemency were processed more quickly than they are now. Prior to 1980, mercy petitions were often decided within a range of 15 days to 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions was gradually increased to an average of 4 years,now the delay of maximum 12 years is seen in disposing of the mercy petitions under Article 72/161 of the Constitution.

It is well established that exercising power under Article 72/161 by the President or the Governor is a constitutional obligation and not a perogerative. The framers did not specify any time limit for deciding mercy petitions under the said Articles, which means it should be decided within reasonable time. However, where the delay in deciding mercy petitions is deemed arbitrary, unjustified, or excessive, it is the Court's responsibility to intervene and assess this issue. The right to seek mercy under Article 72/161 of the Constitution is a constitutional right that does not depend on the executive's discretion or whims.

In numerous instances, the President has taken more than ten years to respond to a petition, resulting in egregious violations of human rights, as the saying goes, "Justice delayed is justice denied." The goal of mercy power was to facilitate the administration of justice, not to evade it. Therefore, it is vital to develop a well-defined procedure and a schedule for the disposition of petitions for clemency.


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