Maarg Manthan · Topic 13.13

Pardoning Power of the President (Article 72)

Indian Polity › President · Topic 13.13

Article 72 lets the President pardon, commute, remit, respite or reprieve sentences by court martial, for Union law offences and in death sentences, on the Union cabinet’s advice; the Governor’s power under Article 161 is narrower.

5 min read · UPSC Prelims · Polity · President

At a Glance

What it is The power to forgive or soften punishments
Article Article 72 (President); Article 161 (Governor)
Cases Court martial, Union law offences and death sentences
Forms Pardon, commutation, remission, respite and reprieve
Exam link UPSC Prelims, Polity: President

Where Does It Fit?

This is the thirteenth topic of the category on the President. Article 72 empowers the President to grant pardons to persons who have been tried and convicted of any offence. The power is independent of the judiciary and the President does not sit as a court of appeal.

Where Article 72 Applies

The President can grant pardons in all cases where the punishment or sentence is for an offence against a Union law; where the punishment or sentence is by a court martial (military court); and where the sentence is a sentence of death. The object of conferring this judicial power on the President is two-fold: to keep the door open for correcting any judicial errors in the operation of law, and to afford relief from a sentence which the President regards as unduly harsh.

The Five Forms

Form	Meaning	Example
Pardon	Removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications	Full forgiveness
Commutation	Substitution of one form of punishment for a lighter form	Death sentence to rigorous imprisonment, which in turn can be commuted to simple imprisonment
Remission	Reducing the period of sentence without changing its character	Two years of rigorous imprisonment reduced to one year
Respite	Awarding a lesser sentence in place of the original owing to a special fact	Physical disability of the convict or pregnancy of a woman offender
Reprieve	Stay of execution of a sentence, especially death, for a temporary period	To allow time to seek pardon or commutation

President and Governor Compared

Point	President (Article 72)	Governor (Article 161)
Court martial sentences	Can pardon	Cannot pardon
Death sentence	Can pardon	Cannot pardon, even if a state law prescribes death; can suspend, remit or commute
Offences covered	Against Union law	Against state law
Suspend, remit, commute a death sentence	Yes	Yes; concurrent power with the President

What the Power Does Not Do

The pardoning power does not make the President an appellate court, and the President cannot review the merits of the verdict as a judge would. The President does not retry the case and cannot change the judicial finding; the President can only grant relief from the sentence or the conviction. Because the power is independent of the judiciary, a pardon can follow even a final judgement. Because the President acts on the cabinet’s advice, decisions are in practice taken by the government. The power is also not limited to death sentences: it covers any sentence for an offence against a Union law and any sentence by a court martial, though the death sentence is the most discussed.

Supreme Court Principles

In Kehar Singh v. Union of India (1988) the Supreme Court laid down these principles: the petitioner for mercy has no right to an oral hearing by the President; the President can examine the evidence afresh and take a view different from the court’s; the power is to be exercised on the advice of the Union cabinet; there is no need for the Court to lay down guidelines for its exercise; and the exercise is not subject to judicial review except where the decision is irrelevant, irrational, mala fide or discriminatory. In Maru Ram (1980) the Court held that the power is exercised on the advice of the cabinet and that it is open to judicial review in limited circumstances. These rulings mean that the President is not an independent authority in mercy matters: the power is exercised on the advice of the council of ministers.

Why Is This Topic Important?

Frequent Prelims theme Five forms and the Governor comparison
Case law Kehar Singh and Maru Ram appear
Cabinet advice Key principle

What Came Next?

The next topic covers the ordinance-making power of the President under Article 123.

Key People and Terms

Pardon Complete absolution
Commutation Lighter punishment
Remission Shorter duration
Respite Lesser sentence for a special reason
Reprieve Temporary stay of execution

Exam Corner

Points to Remember

Article 72: court martial, Union law, death sentence.
Five forms: pardon, commutation, remission, respite, reprieve.
Governor cannot pardon death or court martial.
Kehar Singh (1988): on cabinet advice.

Do Not Confuse With

Remission and commutation Reduce the period versus change the character
Respite and reprieve Lesser sentence for a special reason versus temporary stay
Pardon by President and Governor Death sentence only with the President

Memory Hook

Pardon wipes, commute changes, remit shortens, respite eases, reprieve pauses.

Mains Angle

Questions on this topic usually ask about judicial review of mercy petitions. Use these points to add depth.

Purpose Correct judicial error; relieve harshness
Cabinet advice Real decision by the executive
Limited review Irrelevant, irrational, mala fide, discriminatory decisions
Governor’s power Narrower in range

A Question You May Face

An original practice question, not a past paper question.

“Discuss the pardoning power of the President and how it differs from that of the Governor.”

How to Answer

Introduction Article 72.
Forms Five.
Comparison President versus Governor.
Conclusion Kehar Singh and review.

GS Relevance

Prelims: Indian Polity, President. GS Paper 2: Executive and judiciary.

Frequently Asked Questions

What is the pardoning power of the President?

Under Article 72 the President can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute sentences, in cases of court martial, offences against Union law, and death sentences. It is independent of the judiciary.

What are the forms of pardoning power?

There are five forms: pardon, which removes both sentence and conviction; commutation, substituting a lighter punishment; remission, reducing the period; respite, awarding a lesser sentence for a special reason; and reprieve, a temporary stay of execution.

How does the Governor’s pardoning power differ from the President’s?

The Governor under Article 161 can pardon only sentences for offences against state law. The Governor cannot pardon court martial sentences or death sentences, though can suspend, remit or commute a death sentence. The President has all these powers.

Does the President decide pardons on his own?

No. In Kehar Singh (1988) and Maru Ram (1980) the Supreme Court held that the President exercises the pardoning power on the advice of the Union cabinet, though the President may examine the evidence afresh and take a different view from the court.

Is a presidential pardon subject to judicial review?

Only to a limited extent. The Supreme Court held that the exercise of the power is not subject to judicial review except where the presidential decision is irrelevant, irrational, mala fide or discriminatory. A petitioner has no right to an oral hearing.

PYQ Practice — Statement Analysis

1 The Governor can pardon a death sentence.

False

Only the President can pardon it.

2 Respite means a stay of execution of a sentence.