The Constitution of India
Article 72
Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases
(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) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) 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.
Why this exists
The pardoning power is a long-standing feature of many constitutions, rooted in the idea that even a fair legal system can produce harsh or mistaken outcomes, and that someone outside the courts should be able to correct or soften them in exceptional cases. India's framers modeled Article 72 partly on similar powers held by the British Crown and the U.S. President, but split it between the President (Article 72) and State Governors (Article 161) to reflect India's federal structure. It is meant as a safety valve for mercy, especially in death sentence cases, court martial cases, and offences under central laws.
How courts read it
The Supreme Court has repeatedly held that the pardoning power, though wide, is not absolute or beyond judicial review. In Maru Ram v. Union of India (1980), the Court said the power must be exercised on the advice of the Council of Ministers and cannot be arbitrary. In Kehar Singh v. Union of India (1989), it clarified that courts cannot review the merits of a pardon decision but can examine whether the process followed was fair. Later, in Epuru Sudhakar v. Government of A.P. (2006), the Court held that pardons can be judicially reviewed if they are shown to be mala fide, based on irrelevant considerations, or arbitrary. Courts have also clarified the difference between the President's power under Article 72 and a Governor's power under Article 161, especially regarding death sentences and Union versus State laws.
Common misconceptions
- Myth: The President can pardon anyone for any crime whenever they want.
Fact: The power only applies to specific situations: court martial sentences, offences under Union laws, and death sentences — and courts have said it must be exercised responsibly, not arbitrarily. - Myth: Once the President grants or refuses a pardon, no court can ever question it.
Fact: Courts have held that while they won't review the reasoning behind mercy decisions, they can strike down a pardon or refusal if it was arbitrary, mala fide, or based on irrelevant factors. - Myth: Only the President can grant mercy for a death sentence.
Fact: State Governors also have a separate power under Article 161 to suspend, remit, or commute death sentences under state laws, which Article 72(3) explicitly preserves.