Pardoning power

1. Constitutional basis and purpose

Executive clemency provides a constitutional safety valve against excessive punishment, possible injustice and exceptional hardship. Courts determine criminal liability and impose punishment through legal proceedings. The executive can subsequently consider humanitarian circumstances, public welfare and other relevant factors that may justify relief. Clemency therefore combines mercy with the administration of justice; it is neither a declaration that the judicial system has failed nor an unrestricted political privilege.

Article 72 empowers the President to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute sentences. It identifies three categories: punishment or sentence by a court martial; punishment for an offence against a law relating to a matter within Union executive power; and every case where the sentence is death. The death-sentence category operates even where the underlying offence concerns a matter within State executive power.

Article 161 gives the Governor corresponding powers for offences against laws relating to matters within State executive power. Its scope is not determined simply by whether a crime occurred within a State. The constitutional distribution of executive power, read with Articles 73 and 162, is central. Neither constitutional provision prescribes an exhaustive list of circumstances in which mercy must be granted.

• Article 72: President’s clemency jurisdiction.
• Article 161: Governor’s clemency jurisdiction.
• Articles 74 and 163: constitutional framework of ministerial aid and advice.

2. Meaning of the different forms of clemency

A pardon is the broadest form of clemency: it releases the person from the punishment and associated penal consequences covered by the pardon. It should not be confused with acquittal through an appellate judgment. Commutation substitutes a less severe form of punishment for a more severe one, such as replacing death with life imprisonment. The conviction is not thereby overturned.

Remission reduces the amount or duration of punishment without changing its character. Thus, reduction of a fixed term of rigorous imprisonment is remission, not commutation. A reprieve is a temporary stay of the execution of a sentence, especially a death sentence, allowing time for consideration of a mercy petition or another relevant proceeding.

Respite means awarding a lesser punishment because of a special circumstance, such as pregnancy or serious physical disability. Suspension temporarily keeps the operation of a sentence in abeyance. Questions frequently test these terms through short examples rather than definitions. The central distinction is whether the relief removes punishment, changes its type, reduces its duration, or temporarily postpones its operation.

• Death sentence replaced by life imprisonment: commutation.
• Ten-year imprisonment reduced to six years without changing its character: remission.
• Execution temporarily postponed: reprieve.

3. President, Governor and ministerial advice

The President’s jurisdiction is wider in two important respects: Article 72 expressly includes court-martial cases and all death sentences. Article 161 does not confer a corresponding court-martial power on the Governor. For the standard examination distinction, the power to pardon a death sentence belongs to the President; the Governor can suspend, remit or commute a death sentence within the State’s constitutional sphere. Article 72(3) expressly preserves the Governor’s legally exercisable powers concerning suspension, remission and commutation of death sentences.

Neither office-holder acts as an independent court of mercy. In Maru Ram v. Union of India, 1980, the Supreme Court explained that these powers are exercised on the advice of the appropriate government. The President acts on Union ministerial advice and the Governor on State ministerial advice. The Governor cannot use Article 161 as a general discretionary power to substitute personal preferences for the elected government’s decision.

Under Article 74, the President may require the Council of Ministers to reconsider its advice, but must act according to the advice tendered after reconsideration. The Forty-second Amendment made the binding character of ministerial advice explicit, while the Forty-fourth Amendment added the reconsideration proviso. These amendments altered the advice framework, not the substantive categories listed in Article 72.

• Do not assume that every conviction under a Parliamentary enactment necessarily falls exclusively within Union clemency jurisdiction.
• The constitutional head formally grants relief; political responsibility ordinarily rests with the relevant Council of Ministers.

4. Judicial review and landmark judgments

In Kehar Singh v. Union of India, 1989, the Supreme Court held that the President may examine the evidence and reach a conclusion different from that reached by the court when considering clemency. This does not amend or supersede the judicial judgment; the power operates on a different constitutional plane. The Court also held that an applicant has no right to insist on an oral hearing before the President.

In Epuru Sudhakar v. Government of Andhra Pradesh, 2006, the Court reaffirmed that clemency is reviewable on limited grounds. These include mala fides, non-application of mind, reliance on wholly irrelevant considerations, exclusion of relevant material and arbitrariness. Political loyalty or other extraneous preferences cannot legitimately determine mercy. Courts review the legality of the decision-making process rather than ordinarily substituting their preferred assessment of mercy.

In Shatrughan Chauhan v. Union of India, 2014, the Court recognised that undue, unexplained delay in deciding a death-row mercy petition can justify commutation. Relevant supervening circumstances, including serious mental illness, also require consideration. The judgment emphasised procedural safeguards and a minimum fourteen-day interval between communication of rejection of the mercy petition and execution. Delay is assessed in context; not every delay automatically produces commutation.

• Clemency is broad, but not immune from Article 14 standards against arbitrariness.
• Article 21 continues to protect prisoners after conviction and during the mercy process.

5. Constitutional clemency, statutory remission and federalism

Constitutional clemency must be distinguished from remission and commutation under ordinary criminal procedure. The Bharatiya Nagarik Suraksha Sanhita, 2023, which came into force on 1 July 2024, contains statutory provisions on suspension, remission and commutation, as well as a death-sentence mercy-petition procedure. Older judgments and textbooks generally refer to the corresponding provisions of the Code of Criminal Procedure, 1973.

A major statutory restriction requires at least fourteen years of actual imprisonment before release in specified life-imprisonment cases, including where death was an available punishment or a death sentence was commuted to life. This was contained in CrPC Section 433A and is now reflected in BNSS Section 475. Maru Ram established that an ordinary statutory restriction cannot cut down Articles 72 and 161. However, constitutional powers must still be exercised fairly and on relevant considerations.

Life imprisonment ordinarily means imprisonment for the remainder of natural life unless lawfully remitted or commuted; it does not automatically end after fourteen years. A prisoner also has no automatic right to release merely because a remission application has been filed. Fair consideration under the applicable legal framework is different from a guaranteed favourable outcome.

Federalism becomes especially important where State advice remains pending before the Governor. The Perarivalan decision demonstrated that a Governor cannot bypass the constitutional allocation of responsibility by sending a State clemency matter to the President. For objective questions, separate the source of power, the competent government, the formal constitutional authority and the permissible scope of judicial review.

• Constitutional power and statutory power are distinct sources of relief.
• Fourteen years is a minimum in specified cases, not the universal duration of a life sentence.

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