Pardoning Power
• In India, this power is vested in the President and Governors
under Articles 72 and 161 of the Constitution.
Pardoning Powers of the President
The President’s pardoning power is an executive authority, separate from
the Judiciary, and is not used as a court of appeal. It serves two main purposes
one is to correct potential judicial errors, and the other is to provide relief from
excessively harsh sentences.
The President’s pardoning power includes the following:
• Pardon: A pardon completely erases the conviction and sentence,
releasing the convict from all legal penalties, punishments, and
disqualifications associated with the offence. It fully restores the
individual’s legal status and rights.
• Commutation: It replaces a harsher punishment with a lighter
one. For example, a death sentence might be commuted to life
imprisonment, which could then be reduced to rigorous or simple
imprisonment.
o Unlike a pardon, it does not erase the conviction but modifies the
punishment to a less severe form.
• Remission: Remission reduces the duration of a sentence while
maintaining its original character. It shortens the sentence but does not
alter the nature of the punishment or absolve the convict of guilt.
• Respite: A respite grants a lesser sentence than originally
imposed, typically due to unique circumstances, such as the convict’s
health or pregnancy. It temporarily or permanently reduces the severity
of the sentence.
• Reprieve: A reprieve is a temporary suspension of a sentence,
particularly a death sentence, allowing the convict time to seek a pardon
or commutation. It is typically granted to enable further appeal or
pardoning power applications.
Pardoning Powers of the President Principles
• The mercy petitioner has no entitlement to an oral hearing with the
President.
• The President can re-evaluate the evidence and may arrive at a different
conclusion from the courts.
• This power is exercised by the President based on advice from the
Union Cabinet.
• The President is not obligated to provide reasons for his decision.
• Relief can be granted not only for excessively harsh sentences but also for
clear mistakes.
• The Supreme Court need not prescribe specific guidelines for the
President’s use of this power.
• Judicial review of the President's decision is limited and applies only
in cases of arbitrariness, irrationality, bad faith, or discrimination.
• If a mercy petition has already been rejected, filing another petition does
not warrant a stay.
• Pardoning Power in Court Martial Cases: The President's
authority includes intervening in sentences imposed by court-martials,
reflecting the role of the supreme commander of the armed forces.
o This power ensures that military justice can be tempered with
mercy, providing a crucial check within military tribunals.
• Pardoning Power over Union Laws
• Pardoning Power in Death Sentence Cases
• Limitations on Presidential Pardoning Power: Article 72 does not
override other authorities. Union officers maintain their powers over
court-martial sentences, and state executives can intervene in death
sentence cases.
• Procedure and Accountability: The President exercises pardoning
power on the advice of the Home Minister, underscoring executive
accountability.
Difference Between Pardoning Powers of President and
Governor
Aspect President (Article 72) Governor (Article 161)
- Broader
- Limited to offences under
- Can grant pardons for
Scope of Power state laws; cannot interfere
offences under Union laws,
with military court sentences.
including court-martial
sentences.
- Cannot grant pardons for
death sentences
Death Sentence - Can grant pardons in cases
Authority involving death sentences.
- Can only suspend, remit, or
commute them.
- Applies to all offences
- Applies only to offences
Types of Cases against Union laws and
against state laws.
court-martial sentences.
- Must act on the advice of - It also acts on the advice of
the Council of Ministers but the State Council of Ministers
Advice Requirement
can return the advice for without a provision for
reconsideration once. reconsideration.
- It is also subject to judicial
- Subject to judicial review;
review but with a more
Judicial Review courts can examine the
limited scope due to its state-
exercise of this power.
level application.
Pardoning Powers of the President Key Judgments
o Maru Ram v. Union of India (1981): In this case, the Supreme
Court emphasized that the power to grant pardons must not be
exercised arbitrarily.
o Kehar Singh v. Union of India (1989): This case involved
Kehar Singh, who was convicted for the assassination of Prime
Minister Indira Gandhi. The ruling underscored power is
exercised based on the advice of the Council of Ministers, typically
led by the Home Minister.
o Shatrughan Chauhan v. Union of India (2014): The
Supreme Court emphasized that mercy petitions should be
decided expeditiously. It noted that prolonged delays could
amount to a violation of Article 21 (Right to Life) of the
Constitution.
o Pawan Gupta v. Union of India (2020): Supreme Court ruled
that there is no inherent right to seek a pardon or commutation.
Latest
Raj Kumar Bittu Case 2021
Pardoning Power Overrides 433A:
The Supreme Court held that the Governor of a State can pardon
prisoners, including death row ones, even before they have served a
minimum 14 years of prison sentence.
The Governor’s power to pardon overrides a provision in the CrPC Section
433A which mandates that a prisoner’s sentence can be remitted only after
14 years of jail.
