“DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW”

“POWER OF THE PRESIDENT TO GRANT PARDON

”

SUBMITTED TO- SUBMITTED BY-

Mr. A.K. TIWARI SHIVANI SINGH
ASSISTANT PROFFESOR OF LAW ROLL NO- 127
DR. RMLNLU, LUCKNOW. B.A.LLB(HONS.)/SEM IV
 ACKNOWLEDGEMENT

I would like to express our gratitude to all those who made it possible for us to complete this
project, which includes everyone. This project is the result of extensive research. I would like
to thank our guide Dr. Atul Kumar Tiwari, who inspired me to do this project, whose help
and stimulating suggestion helped through the research for this project.
I further extend our thanks to “library staff of DR. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY who helped me in getting all the books and necessary documents for the
project.
 TABLE OF CONTENT

 INTRODUCTION
 ARTICLE 72 OF THE CONSTITUTION OF INDIA
 JUDICIAL REVIEW ON THE POWER TO PARDON
 CONCLUSION
 BIBLIOGRAPHY
 INTRODUCTION

A pardon is an act of mercy, forgiveness, clemency. The concept of pardon is an artefact of

older times, of an age where an omnipotent monarch possessed the power to punish or remit
any punishment. It became a symbolic attribute of a god-like king having control over his
subject’s life and death. The Power of pardon exists to prevent injustice whether from harsh,
unjust laws or from judgments which result in injustice; hence the necessity of vesting that
power in an authority other than the judiciary has always been recognized.1

The Supreme Court in Kehar Singh v. Union of India 2, justified the existence of a ‘Pardon’,
by acknowledging the fallibility of human judgment being undeniable even in a supremely
legally trained mind and therefore, any such errors can be remedied by entrusting power to a
higher authority, which shall “scrutinize the validity of the threatened denial of life or the
continued denial of personal liberty”.

1
Seervai, H., Constitutional law of India: a Critical Commentary.4th ed., Universal Law Pub. Co. (1991). 
2
(1989) 1 SCC 204.
 ARTICLE 72 OF THE CONSTITUTION OF INDIA

Article 723 of The Constitution, which deals with the Power of President to grant pardons,
etc, and to suspend, remit or commute sentences in certain cases, states that:

1) “The President 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
a) in all cases where the punishment or sentence is by a court Martial;
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;
c) in all cases where the sentence is a sentence of death

2) Noting in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute
a sentence of death exercisable by the Governor of a State under any law for the time
being in force”
In clause (1) of the Article, the words are ‘punishment’ and ‘sentence’ show that the pardon
by the President will save a person from the consequences of an offence and from a
punishment as well. The punishment and sentence are in respect of the offence committed.
This implies that the punishment which is supposed to be pardoned has to be in respect of an
offence and not for any simple breach of a condition4.

The power of pardon that has been granted can be used in following cases:

 In respect of an act which, in the eyes of law, is an offence

 Which offence is in respect of a matter over which the executive power of the Union
extends and,
 For which punishment has already been adjudged.5

3
Article 72 of The Constitution of India, 1950
4
Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104.
5
Id. at 105
It is a well-established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes
of the law. Thus if a person has not been given a chance of a fair trial or a proper
investigation has not been carried out against that person, then there is no reason why that
person should be given a pardon, because he is still innocent. Therefore, it is important to
note that the pardoning power can be exercised only in the case of a convicted person only.

However, in some of the cases the Court has said that the pardon can be granted even before
conviction or trial by a Court. This principle was laid down in the case of In Re: Maddela
Yerra Channugadu and Ors6, wherein the Court held: “The pardon power includes not only
that of granting absolute and unconditional pardons, but also that of commuting a punishment
to one of a different sort than that originally imposed upon a person. It may be exercised at
any time after the commission of an offence, either before legal proceedings are begun or
during their pendency, and either before or after conviction.” This decision was affirmed later
in the cases of K.M. Nanavati v. State of Bombay7 and Ramdeo Chauhan v. State of Assam8.

In Kuljeet Singh v. Lt. Governor9, the Court held that undoubtedly, the President has the
power in an appropriate case commute any sentence imposed by a court into a lesser
sentence. But the question as to whether the case is appropriate for the exercise of the power
conferred by Article 72 depends upon the facts and circumstances of each particular case.

In cases where the trial of a person is held not by courts but by a tribunal, the pardoning
power will not apply. This is because, in such cases, the term ‘breach of conditions’ is used
and not the word offence. To be more precise, the word offence can be used only in the case
when the act done falls within the scope of the word offence as it is defined in the Indian
Penal Code. In addition to this it is important to note that the person should be inquired under
Code of Criminal Procedure, because if it is done under an Act which does not characterize
the act as an offence, then the word punishment would not hold the same meaning as it is
meant to be in Art.72. This issue has been discussed in Maqbool Hussain v. State of
Bombay.10

6
AIR 1954 Mad 911
7
AIR 1962 SC 605
8
(2000) 7 SCC 455
9
AIR 1981 SC 2339
10
AIR 1953 SC 325
The Procedure for seeking the Presidential Pardon is the process starts with filing a mercy
petition with the President under Article 72 of the Constitution. Such petition is then sent to
the Ministry of Home Affairs in the Central Government for consideration. The
abovementioned petition is discussed by the Home Ministry in consultation with the
concerned State Government. After the consultation, recommendations are made by the
Home Minister and then, the petition is sent back to the President.

Clause (2) of Article 72 states that nothing in this Article shall affect the power of the
Governor of the State to grant pardons under Article 16111 of The Constitution.

11
Article 161 of The Constitution of India, 1950
 JUDICIAL REVIEW OF THE POWER TO PARDON
There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law
relating to judicial review of pardoning power.

In Maru Ram v Union of India12, 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 Bengal13, 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."

Further in the Ranga Billa case14, it 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.

In Kehar Singh v Union of India15 the Supreme Court 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.

Therefore, it is a well settled principle that power under Articles 72 is subject to judicial
review of the Court.

12
(1981) 1 SCC 107 
13
(1994) 2 SCC 220
14
Kuljeet Singh v. Lt. Governor, AIR 1981 SC 2339
15
(1989) 1 SCC 204.
PROCESS OF GRANTING PARDON IN INDIA

The process starts with filing a mercy petition with the President under Article 72 of the
Constitution. Such petition is then sent to the Ministry of Home Affairs in the Central
Government for consideration. The abovementioned petition is discussed by the Home
Ministry in consultation with the concerned State Government. After the consultation,
recommendations are made by the Home Minister and then, the petition is sent back to the
President.

DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND GOVERNOR

The scope of the pardoning power of the President under Article 72 is wider than the
pardoning power of the Governor under Article 161. The power differs in the following two
ways:

 The power of the President to grant pardon extends in cases where the punishment or
sentence is by a Court Martial but Article 161 does not provide any such power to the
Governor.
 The President can grant pardon in all cases where the sentence given is sentence of death
but pardoning power of Governor does not extend to death sentence cases.

PENDING CASES OF PARDON BEFORE THE PRESIDENT OF INDIA

It may be stated that as of July 2010, 21 mercy petitions involving 48 convicts' mercy
petitions are pending before the President. They include petitions filed by two accused in the
former Prime Minister Rajiv Gandhi assassination case and a petition from 71-year old
Shobhit Chamar who had killed an upper caste adversary in Bihar. Besides these, three
mercy-appeals and petitions for pardon from four accused persons belonging to Veerappan’s
gang for killing 21 policemen in 1993 and four Punjab terrorists accused of killing 17 people
attending a wedding near Amritsar in 1991 and the mercy appeal of Sushil Maru accused of
killing a five-year old girl in 1995 and three Dalits from Bihar convicted for massacring
members of an upper caste organization are pending for disposal before the President.
Dhananjoy Chatterjee who was sentenced to death for the offence of rape and murder in 1990
and who had filed mercy petition to Governor of West Bengal was hanged after a long period
of fourteen years when his clemency plea was finally rejected by President of India due to the
delay in exercising of the pardoning power.

The mercy petition of Afzal Guru who had attacked Indian Parliament in 2001 and who was
sentenced to death in 2004 is still pending since its filing in 2006. In June, 2010, the Ministry
of Home Affairs has made recommendation to the President's office for rejection of the
mercy petition. Due to the lethargy of executive coupled with political interest, his clemency
plea has not been considered yet.
 CONCLUSION

The pardoning power of Executive is very significant as it corrects the errors of judiciary. It
eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The
process of granting pardon is simpler but because of the lethargy of the government and
political considerations, disposal of mercy petitions is delayed. Therefore, there is an urgent
need to make amendment in law of pardoning to make sure that clemency petitions are
disposed quickly. There should be a fixed time limit for deciding on clemency pleas.

Regarding the judicial review debate, pardoning power should not be absolute as well as
Judiciary should not interfere too much in exercise of this power. As judicial review is a basic
structure of our Constitution, pardoning power should be subjected to limited judicial review.
If this power is exercised properly and not misused by executive, it will certainly prove useful
to remove the flaws of the judiciary.
 BIBLIOGRAPHY

 Constitutional Law of India - Dr. J. N. Pandey ( 44th Edition)

 Constitutional Law f India - H.M. Seervai (A Critical Commentary) Third Edition

 The Constitution of India - S. Sarkar and J.J. Munir 2003 Edition

 Administrative Law - Dr. J.J. R. Upadhyay 5th Edition

 Criminal Law - P.S.A. Pillai (9th Edition)

 Law of Crimes - Justice Raghavan (3rd Edition)