Article 72 — Pardoning Power of the President

Article 72 of the Constitution of India vests in the President the power to grant clemency, a prerogative inherited from the royal pardon of English common law and adapted from the Government of India Act, 1935, and the United States Constitution's Article II clemency clause. The provision authorises 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. This authority extends to three categories: cases where punishment is by court-martial, cases where the offence is against a law relating to a matter within the executive power of the Union, and all cases where the sentence is a sentence of death. The constitutional framers conceived the power as a humanitarian corrective—a check against judicial error and a residual instrument of mercy that no court fully exercises—while embedding it within the executive branch rather than the judiciary.

The exercise of Article 72 is governed by the cardinal principle of Cabinet responsibility. Although the text reads as a personal power of the President, the Supreme Court in Maru Ram v. Union of India (1980) and Kehar Singh v. Union of India (1989) held that the President acts on the aid and advice of the Council of Ministers under Article 74(1), not on personal discretion. Procedurally, a convict—or relatives, lawyers, or non-governmental intermediaries—submits a mercy petition. In death-penalty cases the petition travels through the Ministry of Home Affairs, which examines the record, consults the relevant state government, and prepares a recommendation routed through the Home Minister to the President. The President may return the file once for reconsideration under Article 74(1), but is bound by the Council's reiterated advice. There is no constitutional time limit, a silence that has generated significant litigation.

The pardoning vocabulary is technically precise and each term carries distinct legal consequence. A pardon absolves the convict entirely, wiping out both the sentence and the conviction. A commutation substitutes a lighter form of punishment for a harsher one—death to life imprisonment, for instance. A remission reduces the quantum of a sentence without changing its character. A respite awards a lesser sentence owing to special circumstances such as pregnancy or physical disability, while a reprieve stays execution temporarily to allow the convict to seek further relief. The grounds need not be disclosed, and the President may grant relief even where courts, including the Supreme Court, have confirmed the sentence—the clemency power being executive and supplementary, not appellate.

Contemporary practice illustrates both the deployment and the controversy of the power. In the case of Afzal Guru, convicted for the 2001 Parliament attack, President Pranab Mukherjee rejected the mercy petition and Guru was executed in February 2013. President Mukherjee also rejected the petitions of Ajmal Kasab, executed in November 2012 for the 2008 Mumbai attacks, and of the killers of Rajiv Gandhi before judicial intervention. By contrast, in Shatrughan Chinnan v. Union of India (2014) the Supreme Court commuted fifteen death sentences to life on grounds of inordinate, unexplained delay by the Ministry of Home Affairs in disposing of petitions, holding such delay a violation of Article 21. President A.P.J. Abdul Kalam, during his 2002–2007 tenure, acted on only a fraction of the petitions before him, leaving a backlog that successive presidents and home ministries inherited.

Article 72 must be distinguished from Article 161, which confers an analogous but narrower clemency power on Governors of states. The Governor's power does not extend to court-martial cases and, critically, does not cover sentences of death; only the President may pardon a death sentence. Where the offence falls under a law relating to a matter within the state's executive power, both the President and the Governor may possess concurrent jurisdiction, but in capital cases the presidential power is exclusive. The clemency power must also be distinguished from the statutory remission powers of governments under Sections 432 to 435 of the Code of Criminal Procedure, 1973 (now the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023), which are subject to procedural conditions and judicial scrutiny that the constitutional power transcends.

The scope of judicial review has been the central controversy. Kehar Singh established that the President's order is subject to limited review; the Court will not examine the merits but will intervene if the decision is arbitrary, mala fide, discriminatory, or passed without applying mind to relevant material, as affirmed in Epuru Sudhakar v. Government of Andhra Pradesh (2006), where the Court quashed a Governor's remission. Shatrughan Chinnaiah and Devender Pal Singh Bhullar (2014) addressed supervening circumstances—delay, solitary confinement, and insanity—as grounds for commuting confirmed death sentences. The persistent absence of statutory timelines for disposal of mercy petitions, and the political coloration of clemency decisions, remain unresolved tensions in the jurisprudence.

For the working practitioner—the civil servant in the Ministry of Home Affairs preparing a recommendation, the policy researcher tracking capital punishment, or the desk officer briefing on India's human-rights record—Article 72 represents the constitutional intersection of executive discretion, the right to life under Article 21, and federal architecture. Its mastery requires holding three things simultaneously: the textual grant of power, the binding convention of Cabinet advice, and the expanding contours of judicial review. For UPSC General Studies Paper II, the provision anchors questions on the executive, the separation of powers, and the comparative limits of presidential and gubernatorial authority.