President’s Pardoning Power

The President’s pardoning power allows the President to grant relief from punishment imposed for an offence. Under Article 72, this power extends to every death sentence, irrespective of whether the offence concerns a matter within Union or State executive power. It is an executive power of clemency, distinct from a judicial appeal.

Constitutional scope in death-sentence cases

Article 72(1)(c) authorises the President to grant pardons, reprieves, respites or remissions, or to suspend, remit or commute a sentence, in all cases where the sentence is death.

• The power also separately covers punishments imposed by courts-martial and offences against laws concerning matters within Union executive power.
• A death sentence therefore falls within presidential clemency even when the underlying offence concerns a State subject.
• Article 72(3) preserves the Governor’s power under law to suspend, remit or commute a death sentence.

Forms of clemency

Clemency can remove punishment altogether or provide narrower relief from its severity or execution.

• A pardon releases the offender from punishment and removes the penal consequences of the conviction.
• Commutation substitutes a lighter form of punishment, such as life imprisonment in place of death.
• Remission reduces the period of punishment without changing its character.
• A reprieve temporarily stays execution, allowing time to seek pardon or commutation.
• A respite awards a lesser sentence because of a special circumstance, such as pregnancy or physical disability.

How the power is exercised

Under Article 74, the President exercises clemency on the aid and advice of the Council of Ministers, rather than according to personal discretion.

• The President may require reconsideration of the advice once, but must act according to the advice tendered after reconsideration.
• In Kehar Singh v. Union of India (1989), the Supreme Court held that the President may examine the evidence and merits and reach a conclusion different from the court’s conclusion.
• This examination does not make the President an appellate court or modify the judicial judgment; it determines whether executive relief should be granted.

Judicial review and safeguards

Clemency is broad but not immune from judicial review. Courts review the legality of its exercise rather than ordinarily deciding the merits of clemency themselves.

• In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Supreme Court recognised review on grounds including mala fides, irrelevant considerations, non-application of mind and arbitrariness.
• In Shatrughan Chauhan v. Union of India (2014), the Court recognised that undue, unexplained delay in deciding mercy petitions can justify commutation of a death sentence.