Pardoning Powers Of President (Article 72) - Indian Polity Notes

Pardoning powers of the President is explained under Article 72 of the Constitution. The president has the right to grant pardons, remit or commute the sentences of anyone convicted of any crime. The power to pardon is exercised by the president on the advice of the Council of Ministers. In India, the Governor has pardoning powers under Article 161.

There have been questions on the topic of the Pardoning powers of the President in the UPSC exams earlier. This article explains about the Pardoning powers of the President, concepts and Important judgements are useful for Prelims 2023 preparation and UPSC Mains 2023 as well.

Pardoning Power Of The President: Concept And Purpose

• What is Pardon?: A pardon is an act of mercy, forgiveness, clemency. The power of pardon exists to avert injustice, whether from severe, unjust laws or from verdicts that result in injustice; thus, it has always been understood that putting that power in a body other than the judiciary is necessary.
• Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction.
• The object of pardoning power is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections.
• According to Article 72, the President has the authority to give pardons, reprieves, respites, or remissions of penalty, as well as to suspend, remit, or commute the sentence of anyone guilty of a crime. 
• The Governor of a state has a similar power under Article 161 of the Indian Constitution.

Pardoning Powers of President - Article 72

• The President has the authority to give pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute the sentence of anyone who has been convicted of a crime:
  • in all cases where the punishment or sentence is by a Court Martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.
• Thus, Article 72 empowers the President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases.

Pardoning Powers of Governor - Article 161

• The governor of a state also has pardoning power under Article 161 of the Constitution. 
• As a result, the governor can award pardons, reprieves, respites, and remissions of punishment to anyone guilty of breaking a state law, as well as suspend, remit, and commute their sentence.

Role of the Council of Ministers

• In India, Article 72 of the Constitution of India empowers the President of India to grant pardon, 
• However, the President cannot act as per his own discretion and in this process he is to be guided by the Home Minister and the council of ministers.
• The power to pardon rests on the advice tendered by the executive to the President, who subject to the provisions of Article 74(1) must act in accordance with such advice.

Process of granting pardon in India

• The process starts with filing a mercy petition with the President under Article 72 of the Constitution. 
• Such a petition is then sent to the Ministry of Home Affairs in the Central Government for consideration. 
• The abovementioned petition is discussed by the Home Ministry in consultation with the concerned State Government. 
• After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President.

Terms related to pardoning powers

Comparison of Pardoning Powers of President and Governor

Important judgements

Kehar Singh v. Union of India

• It was decided that the President has the authority under the Constitution to examine the evidence on the criminal case record and reach a different result than the Court, but that this does not amend, modify, or supplant the court record.

Kuljeet Singh v. Lt. Governor (famous Ranga-Billa Case)

• The Court held that, In appropriate cases, the President has the authority to commute any sentence issued by a court to a shorter sentence. 
• The courts have generally upheld the idea that keeping a man in prison for longer than is necessary is not only terrible for him, but also a waste of money and a loss to the community.

Epuru Sudhakar case

• It is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds: 
  • The order has been passed without application of mind.
  • The order is mala fide.
  • The order has been passed on extraneous or wholly irrelevant considerations.
  • Relevant material has been kept out of consideration.

Pardoning power of the President - Legislative Background

• The power of pardon was historically vested in the British monarch during their rule. 
• A pardon was an act of mercy by which the King absolve someone of any crime, offence, punishment, execution, right, title, debt, or duty under common law.
• From 1935 onwards, the law of pardon was contained in Section 295 of the Government of India Act, 1935 which did not limit the power of the Sovereign. 
• There was no provision in the Government of India Act, 1935 corresponding to Article 161 of the Constitution.

Conclusion

The roots of the pardoning authority in India may also be traced in the family. The contemporary practise of pardoning has its roots in the British system, when forgiveness was a Royal Prerogative of the King. The Indian Constitution not only grants the ability to give pardon, but also the power to grant reprieves, respite, remission, and commuting of a punishment. The President of India and the Governors of the respective states have all of these authorities. Although the nature, manner, and other aspects of this pardoning authority to be used by each of them are identical, there is no conflict of power conferred upon these two different entities.

FAQs

MCQs

1. Under which article does the President have pardoning powers?

A. Article 161
B. Article 72
C. Article 356
D. Article 370

2. What is the key difference between a pardon and commutation?

A. Pardon cancels the punishment entirely, commutation reduces the severity
B. Both reduce severity
C. Pardon delays punishment, commutation cancels it
D. Commutation replaces punishment with a harsher one

3. Who advises the President in exercising pardoning powers?

A. The Supreme Court
B. The Parliament
C. The Council of Ministers
D. The Governor

4. Which of the following is an example of a reprieve?

A. Delaying execution
B. Commuting death sentence to life imprisonment
C. Reducing punishment
D. Fully absolving the convict

5. Can the President pardon military court sentences?

A. No
B. Yes, under Article 72
C. Only in cases of treason
D. Only after a Supreme Court ruling

GS Mains Questions and Model Answers

1. Discuss the significance of the President’s pardoning powers in upholding justice in India.

Answer: The pardoning powers under Article 72 allow the President to rectify judicial errors and provide relief in extraordinary cases, especially concerning death penalties. These powers reflect the principle of mercy in the legal system, ensuring that justice is tempered with compassion. Additionally, it serves as a constitutional check on judicial processes, offering a chance to review severe punishments.

2. Examine the relationship between the judiciary and executive concerning pardoning powers.

Answer: While the judiciary delivers verdicts, the President, with advice from the Council of Ministers, exercises pardoning powers to review and mitigate sentences. This division ensures that legal processes are not rigid, and the executive can correct or show leniency where needed, maintaining a balance between justice and mercy.

3. How do pardoning powers contribute to safeguarding the rights of convicts?

Answer: Pardoning powers act as a vital safeguard for convicts, especially in cases involving miscarriages of justice or humanitarian grounds. They provide an opportunity to rectify errors in judicial verdicts, ensuring that individuals can seek mercy for their actions. This power is essential in preserving human dignity, particularly in cases of capital punishment.

Previous Year Questions on Pardoning Powers of the President

1. UPSC CSE Prelims 2020

Question: Under which Article does the President have the power to grant pardons for court-martial sentences?
A. Article 161
B. Article 72
C. Article 356
D. Article 124

Answer: B

Explanation: Article 72 grants the President the power to pardon court-martial sentences.

2. UPSC CSE Mains 2018 (GS Paper 2)

Question: Compare and contrast the pardoning powers of the President and Governor in India.

Answer: The President’s pardoning powers (Article 72) extend to death sentences and court-martials, while the Governor’s powers (Article 161) do not. Both powers apply to state laws in the case of the Governor and Union laws for the President. However, the President can pardon military court decisions, while the Governor cannot.