Constitutional Pardoning Powers

The pardoning power is the power of the President (under Article 72) and the Governor of a state (under Article 161) to forgive a convict, reduce a punishment or change it to a lighter one, even after the courts have given their final decision. It is the last door open to a person sentenced to death. This power belongs to the executive (the government side), not to the courts.

Why does it exist?

Courts decide cases using law and evidence. But some facts cannot fit into a court's rules: a convict's serious illness, new facts found later, a long and painful delay, or reasons of humanity. The pardoning power is a safety valve to correct such mistakes or hardships. In Kehar Singh v. Union of India (1989), the Supreme Court said the power exists to correct possible judicial errors, because no human system is perfect.

Where did it come from?

The idea comes from the British "royal prerogative of mercy", where the King or Queen could forgive criminals. The Government of India Act, 1935 gave similar powers to the Governor-General. The Constitution of India, 1950 placed it in Article 72 for the President and Article 161 for Governors.

The five forms of clemency

Students must learn the exact difference between these five words:

• Pardon: Removes both the sentence and the conviction completely. The person is freed of all punishment and all disqualifications.
• Commutation: Replaces one form of punishment with a lighter form. Example: death changed to life imprisonment, or rigorous imprisonment changed to simple imprisonment.
• Remission: Reduces the length of the sentence without changing its type. Example: two years of rigorous imprisonment cut to one year of rigorous imprisonment.
• Respite: Gives a lighter sentence because of a special fact about the convict, such as a physical disability or a woman's pregnancy.
• Reprieve: A temporary stay (pause) on a death sentence, usually to give time to decide a mercy petition or to approach the court.

What does Article 72 say?

The President can grant pardons, reprieves, respites or remissions, or suspend, remit or commute a sentence, in three kinds of cases:

1. Article 72(1)(a): punishment by a court-martial (military court);
2. Article 72(1)(b): punishment for an offence against a law on a matter within the Union's executive power;
3. Article 72(1)(c): every case of a death sentence.

Article 72(2) says this does not affect the power of armed forces officers to suspend, remit or commute a court-martial sentence. Article 72(3) says it does not affect the Governor's power to suspend, remit or commute a death sentence.

What does Article 161 say?

The Governor has the same five kinds of power, but only for offences against laws on matters within the state's executive power. Two key limits:

• The Governor has no power over court-martial sentences.
• The Governor cannot pardon a death sentence. The Governor can only suspend, remit or commute it. Only the President can fully pardon a death sentence.

How does a mercy petition work, step by step?

1. After the last court remedy ends, the jail superintendent informs the convict.
2. Under Section 472 of the BNSS, 2023, a death-row convict (or a relative or lawyer) can file a mercy petition within 30 days of being informed. It goes first to the Governor, and if rejected, to the President within 60 days.
3. The Ministry of Home Affairs collects the State government's views and the case records and sends its recommendation to the President.
4. The President acts on the advice of the Union Council of Ministers (Article 74), and the Governor on the advice of the state Council of Ministers. This was confirmed in Maru Ram v. Union of India (1980) and Kehar Singh (1989). The President may send the advice back once for reconsideration (added by the 44th Amendment, 1978), but must accept the reconsidered advice.
5. The BNSS says no appeal lies in any court against the President's order on a mercy petition, though courts can still use judicial review on narrow grounds (see below).

What have the courts said?

• Maru Ram (1980): The power must be used on government advice, not on personal choice. It also upheld the rule that certain life convicts must serve at least 14 years before early release under the CrPC, while noting this does not limit Articles 72 and 161.
• Kehar Singh (1989): The convict has no right to an oral hearing before the President. The President can look at the evidence afresh and reach a different view from the courts, without changing the court's record.
• Epuru Sudhakar v. Government of Andhra Pradesh (2006): A pardon order can be reviewed by courts if it was passed without application of mind, with mala fide (bad) intention, on irrelevant or extraneous grounds, by ignoring relevant material, or arbitrarily.
• Shatrughan Chauhan v. Union of India (January 2014): Undue and unexplained delay in deciding a mercy petition is a valid ground to commute a death sentence to life. The Court commuted the death sentences of 15 convicts and said a convict must get at least 14 days between being told of the rejection and the execution, and that solitary confinement before rejection is unconstitutional.
• A.G. Perarivalan v. State (May 2022): The Governor is bound by the state cabinet's advice under Article 161, and long delay by a Governor can be reviewed. The Court used its special power under Article 142 to order his release.
• State of Maharashtra v. Pradeep Yashwant Kokade (December 2024): The Court directed every state and UT to set up a dedicated cell to process mercy petitions quickly, because long delays violate the convict's rights under Article 21.

Constitutional power vs statutory power

Apart from Articles 72 and 161, the criminal procedure law also lets the "appropriate government" suspend, remit or commute sentences: Sections 473 and 474 of the BNSS (earlier Sections 432 and 433 CrPC). Section 475 BNSS (earlier Section 433A CrPC) says a person given life for a crime that also carries death must serve at least 14 years before such statutory release. This 14-year limit binds the government's statutory power, but not the constitutional power of the President or Governor.

Commonly confused concepts

• President (Art 72) vs Governor (Art 161): The President covers court-martial, Union-law offences and all death sentences, and can pardon a death sentence. The Governor covers state-law offences only, has no court-martial power and cannot pardon (only suspend, remit or commute) a death sentence.
• Pardon vs commutation vs remission: Pardon wipes out everything; commutation changes the type of punishment; remission cuts the length but keeps the type.
• Respite vs reprieve: Respite gives a lighter sentence for a special personal reason; reprieve is a temporary pause of execution.
• Mercy petition vs curative petition: A curative petition (Rupa Ashok Hurra, 2002) asks the Supreme Court itself to correct its final judgment. A mercy petition asks the executive for clemency after all court remedies end.
• Clemency vs judicial review: The President's decision itself is not an appeal and cannot be overturned on merits, but courts can check whether it was made lawfully (Epuru Sudhakar).

Issues, criticism and the way forward

• Delay: Mercy petitions have sometimes stayed pending for many years, adding the mental pain of waiting on death row. The courts have treated this as a ground for commutation.
• Political influence: Since the President and Governor act on government advice, critics say the outcome can depend on politics rather than on fixed principles. Reasons for decisions are usually not made public.
• No fixed timeline for the President: The BNSS sets timelines for filing and for the government's recommendation, but not for the final decision.
• Misuse in remission cases: Early release of convicts in serious crimes has sometimes led to public outcry and court challenges.
• Way forward: Suggestions include written reasons for decisions, time limits for each step, the dedicated state cells ordered in 2024, and published guidelines so that similar cases get similar outcomes.

Concepts to Know

• Clemency: Mercy shown by the government to a convict, by forgiving or reducing a punishment.
• Court-martial: A military court that tries members of the armed forces for offences under military law.
• Executive power: The power to run the government and carry out laws, as opposed to making laws (legislature) or deciding cases (judiciary).
• Judicial review: The power of courts to check whether an action of the government is lawful and constitutional.
• Article 142: Lets the Supreme Court pass any order needed to do "complete justice" in a case before it.
• Mala fide: Done in bad faith, with a dishonest or improper motive.