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This work aims to study in detail the Pardoning Power of the President & Governor, its constitutional
basis, objectives, utilities, key judicial pronouncements, and other related aspects.
INTRODUCTION
Recently on November 18th, The Supreme Court directed the Secretary, President of India, to place the
mercy petition filed by Balwant Singh Rajoana, 57 years, Babbar Khalsa terrorist and a death row
convict, before the President with a request that it be considered within 2 weeks.
A special bench of Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan heard a petition
filed by Rajoana under Article 32 seeking commutation of the death sentence on the grounds of
'extraordinary' and 'inordinate delay' in deciding his mercy petition.1
President Droupadi Murmu turned down the mercy plea of Lashkar-e-Taiba terrorist Mohammed Arif,
who was sentenced to death for his role in conspiring to carry out the 2000 Red Fort attack. This is the
second mercy plea rejected by President Murmu after assuming office on July 25, 2022. In April 2023,
she had rejected the mercy plea of Vasant Sampat Dupare, convicted of raping and killing a four-year-
old in Nagpur.
The Constitution, while mandating that the President must not deviate from the recommendation of the
cabinet, says nothing to keep him or her from indefinitely delaying a decision on a mercy petition. This is
especially noticeable in cases where the President disagrees with the recommendation of the Council of
Ministers. Reports have speculated that former Presidents such as KR Narayan, APJ Abdul Kalam and
Pratibha Patil have sat on mercy petitions where they disagreed with the government’s advice.
Moreover, former President Pranab Mukherjee is said to have rejected the advice of the government
while commuting the death sentence in five cases2
The pardoning power of India's president and state governors is a key component of the legal and
constitutional framework of the nation. A miscarriage of justice is corrected and compassionate
governance is ensured by offering relief in certain situations where the legal system may have caused
undue hardship.
Once the death sentence awarded to the convict has been confirmed by the High Court or the Supreme
Court, anybody, regardless of nationality, can submit a mercy petition to the Home Department of the
concerned State, which then forwards it to the Governor with its advice on whether to accept or reject
it. If the Governor declines the petition, it is forwarded, along with all relevant documents, to the
Ministry of Home Affairs (MHA). The MHA then sends the petition to the President, with advice on how
to act on it. The President can choose to endorse the recommendation or, if he or she disagrees, send
the petition back for reconsideration. However, if the same recommendation is reiterated, the President
is constitutionally obligated to accept it3
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What Is Pardoning Power?
In the context of the Criminal Justice System, Pardoning Power refers to the authority vested in a
government executive, typically the President or the Governor, to grant clemency or leniency to
individuals who have been convicted of a crime or are facing punishment for an offence.
This power allows the executive to intervene in the administration of justice to mitigate the severity of
punishment, correct potential miscarriages of justice, or address humanitarian concerns.
It acts as a critical safeguard against judicial errors or excesses and provides a mechanism to ensure
mercy and fairness in the administration of justice.4
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Objectives Of Pardoning Power In India
The objectives of the Pardoning Power of the President & Governors of States, as provided by
the Indian Constitution, are mainly two-fold:
- To keep the door open for correcting any judicial errors in the operation of law.
- To afford relief from a sentence, that the President or the Governor regards as unduly
harsh.5
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Constitutional Provisions Regarding Pardoning Power in India.
The constitutional provisions regarding the Pardoning Power of President & Governor are as follows:
(1) The President shall have the power to grant parsons, reprieves, respites, or omissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence.
b. 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;
This, Article 72 of the constitution parsons etc. and to suspend, remit or commute sentences in
certain cases.
Pardon
A grant of ‘Pardon’ by the President of India removes both the sentence and the conviction and
completely absolves the convict from all sentences, punishments, and disqualifications.
Commutation
A grant of ‘Commutation’ denotes the substitution of one form of punishment for a lighter
form. For example, a death sentence may be commuted to rigorous imprisonment, which in
turn may be commuted to simple imprisonment.
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Remission
A grant of ‘Remission’ implies reducing the period of a sentence without changing its character.
For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous
imprisonment for one year.
Respite
A grant of ‘Respite’ denotes awarding a lesser sentence in place of one originally awarded due
to some special fact, such as the physical disability of a convict or the pregnancy of a woman
offender.
Reprieve
A grant of ‘Reprieve’ implies a stay of the execution of a sentence for a temporary period in
order to enable the convict to have time to seek pardon or commutation from the President
The Article deals with the power of the Governor to grant pardons, etc, and to suspend, remit
or commute sentences in certain cases. The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law relating to a matter to which
the executive power of the State extends. Thus, this Article empowers the Governors of States
to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute
the sentence of a person convicted of an offence against a law relating to a matter to which the
executive powers of the State extends.
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COMPARISON
PRESIDENT
-The President can pardon, reprieve, respite, remit, suspend, or commute the punishment or
sentence of any person convicted of any offence against a Central law.
-The President can pardon, reprieve, respite, remit, suspend, or commute a death sentence.
He/she is the only authority to pardon a death sentence.
-The President can grant pardon, reprieve, respite, suspension, remission, or commutation with
respect to punishment or sentence by a court martial (military courts).
GOVERNOR
- The Governor can pardon, reprieve, respite, remit suspend, or commute the punishment or
sentence of any person convicted of any offence against State law.
- The Governor can only suspend, remit, or commute a death sentence. He/she cannot pardon
a death sentence.
Death Sentence
The President can grant pardon in all cases where the sentence given is the sentence of death.
The Governor cannot pardon a death sentence. He/she can only suspend, remit, or commute a death
sentence.
Even if a death sentence has been given under a State law, the power to pardon it lies only with the
President, and not the Governor.
Court Martial
The President of India possesses the pardoning power w.r.t. punishment or sentences by a military court
(court-martial).
The Governor does not possess the pardoning power w.r.t. Punishment or sentences by a military court
(court-martial).
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JURISPRUDENCE OF GRANTING PARDON9
The philosophy underlying the pardon power is that that “every civilized country recognizes and has,
therefore provided for the pardoning power to be exercised as an act of grace and humanity in proper
cases, without such a power of clemency to be exercised by some department or functionary of
government, a country would be most imperfect and deficient in its political morality and in that
attribute of deity whose judgments are always tampered with mercy.
The pardoning power is founded on consideration of public good and is to be exercised on the ground of
public welfare, which is the legitimate object of all punishments, will be as well promoted by a
suspension as by an execution of the sentences.
In common parlance, to pardon means to forgive a person of his offence. The term 'pardon' has been
defined as an act of grace, proceeding from the power entrusted with the execution of the law, which
exempts the individual on whom it is bestowed upon, from the punishment the law inflicts for a crime
he has committed. It affects both the punishment prescribed for the offence and the guilt of the
offender.
In other words, grant of pardon wipes off the guilt of accused and brings him to the original position of
innocence as if he had never committed the offence for which he was charged. Under Indian law, the
President of India and the Governors of States have been given the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the sentence. The law governing
grant of pardon is contained in Articles 72 and 161 of the Constitution.
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POWER OF PARDONING IN VARIOUS COUNTRIES10:-
The modern practice of pardoning find its origin in the British system in which it was a Royal Prerogative
of the King to forgive. It also finds mention in the code of Hammurabi, a series of edicts that were
developed in Babylon nearly 4,000 years ago. During the medieval period, pardon was extensively used
as a method of reducing overcrowding in prisons during war, political revolt etc. In modern democratic
countries, the power to grant pardon or clemency is vested in their executive heads.
The American Constitution gives the President the power to grant reprieves or pardons for offences
against the USA, except in case of impeachment. However, this power is available only in case of
violation of Federal law and pardon in the case of violation of a State law has to come from the
Governor of the State concerned.
In UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial advice.
In Canada, pardons are considered by the National Parole Board under the Criminal Records Act.
In India, the power to grant pardon is conferred upon the President of India and the Governors of States
under Articles 72 and 161 of the Constitution of India.
Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue for a
long time. Those who reject pardon as an effective measure of mitigating circumstances argue that the
power to pardon is often misused by the executive. There is a possibility that the convict may procure
his release from prison by exerting undue influence on the executive authority. To avoid these flaws, in
most of the countries, there is a provision for judicial review of the pardon granted in the event of
grounds for pardon being found unsatisfactory.
UNITEDSTATESOF AMERICA
The United States Constitution, Article II, Sec. 2 provides that the President "shall have the power to
grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
This power includes the power to remit fines, damages, and confiscations, except for money protected
by the treasury or paid by the informant, the power to pardon absolutely or conditionally, and the
power to rescind sentences which are valid without the consent of the offender. The President can
pardon the criminal but not civil contempt of the court9. The drafters drew up the provision in its
present form to make it clear that the power was only to apply to offenses against the United States,
adding the same restriction that prevailed in English law that the power did not apply to prosecutions.
The Supreme Court of the United States has explained in more than one instance that the word ‘pardon‘
should have the same significance as that granted under the United States Constitution as it was granted
to England. The history of presidential pardon indicates a consistent dependency on English procedures.
10 The Court in the case of Ex Parte Grossman11 opined that "it is not the fact of punishment but rather
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its character and purpose that makes the difference between the two kinds of contempt. For civil
contempt, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop
it. For criminal contempt, the sentence is punitive in the public interest to vindicate the authority of the
court and to deter other like derelictions".
The fundamental discrepancies between the framework of the US government and that of India make it
inappropriate to follow the US system. The USA is following a Presidential Government Structure in
which the executive is generally separated from the constraints of the politics of the legislative party and
more flexible than the Indian Parliamentary system. The system thus imposes a degree of accountability
that would not be appropriate in India with the use of the pardoning power.
UNITED KINGDOM
In common law, pardon was an act of mercy on the part of the King to "forgave any crime, offence,
punishment, execution, right, title, debt, or duty." This power was complete, unrestricted and not open
to any judicial review12. There is no time to grant pardon, it can be performed both before and after the
arrest. The Crown also has the authority to grant suspension, may delay the execution of the sentence
on a temporary basis, or may remit the whole or part of the punishment13. However, in its uncontrolled
existence, it could hardly exist in the democratic structures of the State. Over a period of time, it has
been diluted to a small degree in the United Kingdom by the exercise of judicial review14. At present,
the monarch exercises power on the advice of the Home secretary. In certain cases, the decision of the
Home Secretary can be questioned by judicial review. The scope of the UK judicial review of the powers
of pardon is extremely limited. However, the British constitutional framework acknowledges the
supremacy of Parliament and offers a restricted framework for judicial review than the Indian
Constitution, which leads towards the separation of powers. As a result, the British precedent in this
field has significant drawbacks to India15.
CANADA
The Royal Prerogative of Mercy stems from the ancient power of the British king, who had the absolute
freedom to practice mercy on any issue.
In Canada, the Governor-General, who, as the Queen‘s representative, can practice the Royal
Prerogative of Mercy, has been granted powers similar to executive clemency. The application of
exceptional remedies is largely an unregulated discretionary force for deserving situations, in
extraordinary circumstances16.
Canadians who have a conviction are well aware of the constraints that the record places on living a
normal life, especially concerning job opportunities. Pardon is meant to remove the legal and social
stigma associated with their history through reformed offenders. Under the Criminal Records Act, the
Criminal Code, and many other rules, Canadian pardons are considered by the Parole Board of Canada
(formerly known as the National Parole Board). The PBC is the Federal Agency in charge of pardon
rulings and is an autonomous statutory tribunal with exclusive authority to grant, refuse, release, cancel,
terminate or suspend the day parole and the full parole under the Corrections and Conditional Release
Act17.
upon to settle on the essence and extent of the power of pardon of the President of India under Article
72 of the Constitution. In that case, the death penalty of one of the petitioners was upheld by the
Supreme Court. His appeal for mercy was also denied by the President. The petitioner then lodged a writ
petition in the Supreme Court questioning the President‘s power to grant pardon on the basis that there
were no grounds for denying his petition. The Court denied the petition and noted that the word
"pardon" itself means that it is entirely a discretionary remedy and that it is not appropriate to justify
granting or refusing it.
The Supreme Court upheld its previous position in Kehar Singh v Union of India23 and held that the
granting of pardon by the President is an act of mercy and thus can be asserted as a matter of law. The
power exercised by the President, which is entirely administrative, is not justified.
Maintaining Checks and Balances – The pardoning power acts as a check on the judicial branch,
providing the executive with a means to balance or override judicial decisions in exceptional
circumstances. This contributes to the system of checks and balances between the different
branches of government.
Resolving Political Tensions – In sensitive political cases, the pardoning power can be used to
defuse tensions, promote reconciliation, and restore social harmony. It can be employed to
address the concerns of marginalized groups or to heal divisions within a society.
Addressing Evolving Social Norms – The pardoning power allows the Executive to adapt to
changing social norms and values over time, granting clemency in cases where the original
conviction or sentence may no longer be considered just or appropriate.
KINDS OF PARDON12
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1. CONDITIONAL PARDON
Pardon is conditional because its efficacy depends on the success of the accused‘s condition.
The only restriction on the authority of the governor to grant conditional pardon is that the
provision should not be unconstitutional, unethical, or difficult to satisfy. Approval of pardon
shall bind the person who accepts it to all the terms, restrictions, and limitations found therein.
However, the conditions must be lawful, ethical, and enforceable. To be operational, the
condition must appear on the face of the paper. The requirements need to be clear and precise.
The explanation is that the conditions related to the pardon should be explicit and precise to
notify the person who has been pardoned of what is expected.
2. ABSOLUTE PARDON
Absolute pardon is a pardon that saves the wrongdoer from prosecution and returns
unqualified civil rights to the convict. Absolute pardon is also known as full pardon and
unconditional pardon. For example, if a person commits federal tax evasion (i.e. does not pay
his or her federal taxes) and the president forgives the person, then he or she will be released
of any tax evasion detention.
3. PARTIAL PARDON
A partial pardon releases some, but not all, of the guilt of a crime from the offender. For
example, if, on two different criminal charges, the offender was sentenced, the president may
decide to pardon one of the other allegations. Therefore, if the offender was found guilty of
treason against the United States and alleged arson on a government building, the President
could choose to forgive the wrongdoer, but not both, for either treason or just alleged arson.
The procedure begins with the submission of a petition of mercy to the President according to
Article 72 of the Constitution. This petition is further forwarded to the Ministry of Home Affairs
of the Central Government for approval. The petition is then addressed by the Home Ministry in
consultation with the Government of the State concerned. Suggestions are proposed by the
Home Minister after review and then, the petition is sent back to the President.
The following procedure must be followed while filing a mercy petition with the president:
1. The convict is allowed to file a Mercy Petition within seven days after the date on which the
superintendent of Jail informs him about the dismissal of the appeal by the Supreme Court.
2. The petition is presented to the President after which the President seeks advice of the
cabinet ministers. The ministers take the advice of the state concerned.
3. The President's pardon is subjected to judicial review. The court cannot interfere the decision
of the President if the President's decision was not arbitrary or unreasonable.
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imprisonment. But this does not apply in the cases of terrorists. This thing got reversed in the
case of Yakub Memon v. State of Maharashtra (2013). The pardoning power of the President is
a constitutional duty and is must be excercised within a reasonable amount of time.
And the recent instance where the Supreme Court has directed the secretary to the President
of India to present Balwant Singh Rajoana's pending mercy petition to the President within two
weeks for a decision. He was sentenced for his role in the 1995 assassination of Punjab Chief
Minister Beant Singh and 16 others.
His petition, filed in 2012, has faced an extraordinary delay of over 11 years. If the petition
remains undecided within the stipulated time, the Court will consider granting interim relief.
The Court criticized the Union government for its casual approach to the matter and
emphasized the importance of resolving the case promptly.
Rajoana's mercy plea cites the delay as a violation of his fundamental rights. The case
highlights significant delays in deciding mercy petitions and it raises concern over the rights of
death row convicts.
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In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that the power
under Article 72 is to be exercised on the advice of the Central Government and not by the
President on his own, and that the advice of the Government binds the head of the Republic.
In Dhananjoy Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated its
earlier stand in Maru Ram's case and said:
The power under Articles 72 and 161 of the Constitution can be exercised by the Central and
State Governments, not by the President or Governor on their own. The advice of the
appropriate Government binds the Head of the state.
The Supreme Court in Ranga Billa case was once again called upon to decide the nature and
ambit of the pardoning power of the President of India under Article 72 of the Constitution. In
this case, death sentence of one of the appellants was confirmed by the Supreme Court. His
mercy petition was also rejected by the President. Then, the appellant filed a writ petition in
the Supreme Court challenging the discretion of the President to grant pardon on the ground
that no reasons were given for rejection of his mercy petition. The court dismissed the petition
and observed that the term “pardon†itself signifies that it is entirely a discretionary
remedy and grant or rejection of it need not to be reasoned.
Supreme Court once again in Kehar Singh v Union of India reiterated its earlier stand and held
that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as
a matter of right. The power exercisable by the President being exclusively of administrative
nature, is not justiciable.
In Swaran Singh v State of U.P., the Governor of U.P. had granted remission of life sentence
awarded to the Minister of the State Legislature of Assembly convicted for the offence of
murder. The Supreme Court interdicted the Governor's order and said that it is true that it has
no power to touch the order passed by the Governor under Article 161, but if such power has
been exercised arbitrarily, mala fide or in absolute disregard of the finer cannons of
constitutionalism, such order cannot get approval of law and in such cases, the judicial hand
must be stretched to it.The Court held the order of Governor arbitrary and, hence, needed to
be interdicted.
In the early case of K.M. Nanavati v State of Bombay ] , Governor granted reprieve under Article
161 which was held unconstitutional as it was in contrast with the Supreme Court rulings under
Article 145.
In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, it was held by the
Supreme Court that 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:
Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial
review.
CONCLUSION
The judicial review of the pardoning power is a classic illustration of evolution of law through
judicial interpretation. Starting with extreme hesitation to even look into the subject, the trend
has now shifted towards a more balanced and middle path approach. The courts have largely
agreed upon the judgment given in Maru Ram’s case and the limitations imposed therein to
carve their role in cases of review. There is a consensus that the court cannot look into the
merits of the decision except in cases of arbitrariness, mala fide or ignorance of certain relevant
facts. Although the courts have in a few cases, crossed the thin line which restricts the scope of
their review as laid down in Maru Ram’s case, it is felt that such cases are aberrations. These
should be ignored since there has been very little or no deviation by the Court from the path
shown in the Maru Ram judgment.
Thus, concluding in the words of Pathak,C.J., “in any civilized society, there can be no attributes
more important than the life and personal liberty of its members”33 and the pardoning power
of the President and the Governor is one such power which ensures the same. This power is
thus an imperative and integral part of the Constitution and it is hoped that the repositories of
the power exercise the same in a just and impartial manner and the judiciary continues to act
as a watchdog in such cases.