The President’s Pardoning Powers: Constitutional Basis and Judicial Scrutiny
Context : The President of India, under Article 72, possesses the power to grant clemency. This power acts as a final safeguard against judicial error and excessive punishment. Its exercise is a matter of executive discretion guided by the Council of Ministers and is subject to limited judicial review, ensuring constitutional morality.
I. Constitutional Basis and Scope (Article 72)
The pardoning power is rooted in Article 72 of the Constitution, granting the President the power to deal with sentences and punishments primarily to ensure justice tempered with mercy.
A. Specific Powers
The President may grant five types of clemency powers:
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Pardon: Completely absolves the convict from all sentences and disqualifications.
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Reprieve: Grants a temporary stay of the execution of a sentence (especially death), allowing the convict time to seek a Pardon or Commutation.
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Respite: Awards a lesser sentence in place of the one originally awarded due to special facts (e.g., pregnancy of a woman offender or mental disability of the convict).
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Remission: Reduces the period of the sentence without changing its character (e.g., reducing 10 years of rigorous imprisonment to 5 years of rigorous imprisonment).
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Commutation: Substitutes one form of punishment with a lighter form (e.g., changing a death sentence to life imprisonment).
B. Coverage of Offences
The President’s power extends to three specific areas:
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All offences tried under Union law.
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Sentences awarded by a court-martial (military courts).
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All cases involving a death sentence (this is an exclusive power; the Governor under Article 161 cannot pardon a death sentence).
II. Exercise of Power: Executive Constraint and Judicial Review
The pardoning power in India is not an act of personal mercy but an Executive function guided by democratic principles.
A. Role of the Council of Ministers
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Binding Advice: The President exercises this power on the aid and advice of the Council of Ministers, headed by the Prime Minister (Maru Ram v. Union of India, 1981).
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Reconsideration: As per Article 74, the President can ask the Council of Ministers to reconsider its advice once, but must act according to the advice tendered after such reconsideration.
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Procedure: The clemency petition is processed by the Ministry of Home Affairs, which seeks input from state governments and judicial authorities before formulating the final advice for the President.
B. Limited Judicial Review
Mercy decisions are generally considered non-justiciable (beyond judicial scrutiny), but the Supreme Court has carved out limited grounds for intervention:
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Grounds for Scrutiny: The decision can be challenged if it is found to be arbitrary, mala fide (in bad faith), based on irrelevant considerations, or suffers from non-application of mind (Epuru Sudhakar v. Government of Andhra Pradesh, 2006).
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Commutation for Delay: The Court can commute a death sentence to life imprisonment if there has been an inordinate and unexplained delay by the Executive in deciding the mercy petition (Shatrughan Chauhan v. Union of India, 2014).
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Scope: Courts do not re-examine the merit of the conviction or the evidence presented in the trial.
III. India vs. USA: Comparison of Pardoning Powers
The power of pardon in India and the United States differs significantly in its constitutional design and exercise. In India, the President’s pardoning power under Article 72 of the Constitution is not an independent or personal discretion. It is exercised only on the aid and advice of the Council of Ministers, making it an executive function subject to constitutional conventions and democratic accountability. The scope of this power is also federally limited—the President can grant pardons only for offences under Union law and for sentences awarded by court-martial, and cannot interfere in offences that fall within the State’s jurisdiction. Additionally, while broad, this power is open to limited judicial review, particularly on grounds such as arbitrariness, mala fides, or non-application of mind, ensuring a constitutional check against misuse.
In contrast, in the United States, the President’s pardon power flows from Article II, Section 2 of the US Constitution and is largely discretionary and personal in nature. The President is not constitutionally bound to act on the advice of any executive body. However, like India, the federal structure limits the scope of this power—the US President can pardon only federal crimes and has no authority over state offences. Unlike India, judicial review over the exercise of the pardon power is virtually absent, making it one of the most absolute executive powers in the American constitutional framework.
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The Source’s Authority and Ownership of the Article is Claimed By THE STUDY IAS BY MANIKANT SINGH
