Article 72 of Indian Constitution: Powers of President to Grant Pardons

Few constitutional provisions wield such profound human and legal impact as Article 72 of the Indian Constitution. Empowering the country’s President to grant pardons, reprieves, respites, or remissions of punishment, Article 72 serves as a check within India’s criminal justice system. Over decades, it has symbolized both the hope of rehabilitation and the delicate balancing act between justice and mercy. With its far-reaching consequences, understanding Article 72 is vital for legal professionals, policymakers, and citizens alike.

The Legal Framework of Article 72

Article 72 stipulates the President’s authority to intervene in certain sentences and convictions. Its text grants the President power to pardon, reprieve, respite, or remit punishments, or to suspend, remit, or commute sentences. This power is not absolute or arbitrary; it is circumscribed by legal traditions, procedures, and constitutional interpretation.

Scope and Limitations

The President can grant clemency in three specific scenarios:

1. Where the sentence is by a court-martial.
2. Where the offence is against any law relating to matters under the Union government’s executive power.
3. For sentences of death, regardless of the authority under which the conviction occurred.

Yet, it is important to note that the President usually exercises this power on the advice of the central government. While the President is the formal grantor, the actual discretion often lies with the Cabinet.

“Article 72 serves both as a constitutional safeguard for individual rights and an instrument for correcting judicial errors or harshness that the law sometimes produces.”
— Prof. M.P. Singh, eminent constitutional scholar

Interpretation by the Supreme Court

The Supreme Court of India has consistently underscored the President’s role as not merely ceremonial but subject to judicial review under limited grounds such as mala fides, non-application of mind, or irrelevant considerations. Notably, in Maru Ram v. Union of India (1980), the Court held that the President’s power, while broad, is not beyond scrutiny if exercised arbitrarily.

Forms of Presidential Clemency

Article 72 identifies five forms of clemency. Each serves a specific function—distinguishing between reducing a sentence, substituting a less severe punishment, or granting absolute liberty.

Pardon

A pardon fully absolves the convict of the offense and nullifies all legal consequences. This is the most complete form of executive mercy.

Commutation

Commutation substitutes a lesser form of punishment for the original sentence—for example, converting a death sentence to life imprisonment.

Remission

Remission lessens the period of a sentence without altering its character. For instance, a 10-year sentence might be reduced to five years.

Respite and Reprieve

• Respite reduces the degree or mode of punishment, considering circumstances such as pregnancy, age, or health.
• Reprieve temporarily postpones the execution of a sentence, especially death sentences, to allow legal remedies or appeals.

Real-World Cases: Clemency in Action

High-profile mercy petitions have often dominated Indian media and politics. For example, the case of Yakub Memon, convicted in the 1993 Mumbai bomb blasts, saw multiple mercy petitions filed with both the President and the Governor. The decision-making process was exhaustive, involving judicial review and government scrutiny before the clemency plea was ultimately rejected.

Similarly, cases like those of Rajiv Gandhi’s assassins or Afzal Guru have ignited debates around justice, security, and the moral dimensions of presidential mercy. These cases highlight the immense pressure and responsibility attached to decisions under Article 72.

Article 72 vs. Article 161: President and Governor’s Powers Compared

While Article 72 empowers the President, Article 161 of the Indian Constitution provides similar powers to Governors at the state level. However, there are crucial distinctions:

• President’s power extends to all death sentences and offenses under union law.
• Governor’s power is limited to offences against laws relating to the state’s executive power and does not extend to court-martial sentences.

The interplay between these two articles ensures a dual layer of executive relief, adding a further check and balance within the federal structure.

The Mercy Petition Process: Steps and Safeguards

Filing a mercy petition is a rigorous, multi-step process designed to ensure both thoroughness and fairness:

1. The convict or their relatives submit a petition to the President or the Governor.
2. The petition is routed through the Ministry of Home Affairs, which consults relevant state authorities.
3. The Home Ministry offers its recommendation to the President, who makes the final decision.

Safeguards exist to prevent misuse or delays. The Supreme Court has directed that mercy petitions should not linger indefinitely—unwarranted delays can be a ground for commutation, as seen in the Shatrughan Chauhan case (2014).

Debates and Criticisms: Controversies around Article 72

Article 72’s application has been a recurring subject of contentious debate. Critics argue that political considerations or delays sometimes override principles of justice. There have also been allegations of inconsistency and lack of transparency.

On the other hand, legal experts point out that the provision embodies compassion, allowing room for correction where rigid legalism would fail. Empirically, most mercy petitions are rejected, but the handful of commutations and pardons have provided life-changing relief in exceptional circumstances.

Global Context: Pardoning Powers Worldwide

India’s model is hardly unique. The U.S. President’s constitutional pardon power is well known, and the British monarch historically exercised the “royal prerogative of mercy.” However, procedural safeguards and judicial review mechanisms vary significantly. Unlike in some jurisdictions, Indian law explicitly allows for judicial review of the President’s clemency decisions on limited grounds, striking a balance between executive authority and rule of law.

The Evolving Role of Article 72

Legal reforms, growing public scrutiny, and the maturation of India’s democracy have nudged the process towards greater transparency. Digitization, better record-keeping, and judicial oversight have enhanced accountability in handling mercy petitions. However, fundamental dilemmas remain—balancing justice and mercy, and providing closure to victims’ families without undermining constitutional values.

Conclusion: Article 72 as an Instrument of Justice and Compassion

Article 72 of the Indian Constitution stands at the intersection of law, humanity, and executive discretion. It acts as a crucial safety valve, protecting against irreversible judicial errors and upholding the principles of justice tempered with mercy. As legal systems evolve and public expectations grow, the effective and fair use of this power will continue to shape India’s commitment to both the rule of law and compassionate justice.

FAQs

What is Article 72 of the Indian Constitution?
Article 72 grants the President of India the power to grant pardons, reprieves, respites, remissions, or to commute or suspend sentences for specific cases, including death sentences and court-martial convictions.

How does Article 72 differ from Article 161?
While Article 72 empowers the President for certain offences, including death sentences and court-martials, Article 161 allows state Governors to grant pardons and similar reliefs for offenses under state law, except for court-martial cases.

Can the President’s decision under Article 72 be challenged in court?
Yes, although the power is discretionary, courts can review the President’s decision if there are allegations of arbitrariness, mala fide intent, or failure to consider relevant facts.

Is the President bound to grant every mercy petition received?
No, the President must consider each petition on its merits and typically acts on the advice of the central government after a careful review process.

What happens if there is a delay in deciding a mercy petition?
The Supreme Court has held that inordinate delays can be grounds for commuting death sentences to life imprisonment, ensuring prompt and fair application of executive clemency.

Who can file a mercy petition under Article 72?
A convict, or on their behalf a relative or legal representative, can submit a mercy petition to the President, often after all judicial remedies have been exhausted.