Pardoning Power of President and Governor: Article 72 and 161

Introduction

The power to grant pardons is a constitutional prerogative vesting in the President (Article 72) and Governors (Article 161) of India. Rooted in the British royal prerogative of mercy, this power serves as a check against judicial fallibility and allows for mercy in appropriate cases. It is not an absolute power but is exercised on the aid and advice of the Council of Ministers.

Constitutional Provisions

Article 72 — Power of President to Grant Pardons

• Extends to: (a) offences against Union law; (b) sentences by court-martial; (c) death sentences
• Types of clemency under Article 72:
  • Pardon: Removes both sentence and conviction, fully absolving the offender
  • Commutation: Substitutes a lighter sentence for a harsher one
  • Remission: Reduces the sentence period without changing its nature
  • Respite: Awards a lesser sentence due to special circumstances (e.g., pregnancy, illness)
  • Reprieve: Temporary stay of execution of sentence
• President can exercise power even after conviction but before sentencing
• Scope limited to Union subjects and death penalty cases

Article 161 — Power of Governor to Grant Pardons

• Extends to offences against State law
• Governor can pardon, reprieve, respite, remit, suspend, remit, or commute sentences
• Cannot grant pardon for death sentence — that falls exclusively to the President
• Limited to State subjects and offences under State jurisdiction

Scope and Limitations

Judicial Review of Pardoning Power

• Not absolute or unfettered — subject to limited judicial review
• Epuru Sudhakar v. Govt. of AP (2006): Supreme Court held that pardoning power can be reviewed if:
  • Exercised with malafide intent
  • Based on irrelevant/extraneous considerations
  • Arbitrary or discriminatory
  • Non-application of mind
• Maru Ram v. UOI (1981): President/Governor must act on aid and advice of Council of Ministers

Grounds for Review

1. Procedural impropriety — bypassing statutory procedures
2. Non-application of mind — mechanical exercise without considering relevant factors
3. Mala fides — exercising power for collateral purposes
4. Discrimination — unequal treatment of similarly situated convicts
5. Irrelevant considerations — relying on factors outside the scope of the power