Constitution of India
Article 72: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases
Part V — The Union
Clause (1)
WHAT IT SAYS: The President can grant pardons, reprieves, respites, or remissions of punishment, or suspend, remit, or commute the sentence of any person convicted of any offence in three categories: (a) Court Martial sentences; (b) Offences against Union laws; (c) Death sentences. WHAT IT MEANS: 1. President holds the highest clemency power in India. 2. Covers ALL death sentences — even under State laws. 3. Covers ALL Court Martial (military court) sentences. 4. Covers ALL offences where Union executive power extends. 5. Five types of relief: Pardon, Reprieve, Respite, Remission, Commutation. KEY DOCTRINE: Doctrine of Constitutional Mercy — clemency is not a matter of right but an act of grace; exercised on Council of Ministers' advice (Article 74), and subject to limited judicial review.
Clause (2)
WHAT IT SAYS: Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces to suspend, remit, or commute a Court Martial sentence. WHAT IT MEANS: 1. Military officers retain their independent statutory powers over Court Martial sentences. 2. President's pardoning power is in addition to, not in substitution of, military officers' powers. 3. Ensures military discipline is not disrupted. KEY DOCTRINE: Principle of non-interference with military command chain's internal sentencing powers.
Clause (3)
WHAT IT SAYS: Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit, or commute a death sentence exercisable by the Governor of a State under any law for the time being in force. WHAT IT MEANS: 1. Governor's power to commute death sentences under State laws is PRESERVED alongside the President's power. 2. However, Governor CANNOT grant a full PARDON in death sentence cases — only the President can. 3. Originally mentioned 'Governor or Rajpramukh'; words 'or Rajpramukh' omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Schedule. KEY DOCTRINE: Concurrent but asymmetric clemency jurisdiction — President has full pardoning power over death sentences; Governor's power is limited to suspension, remission, and commutation only.
Constitutional Inspiration
SOURCE(S): 1. United States Constitution — Article II, Section 2, Clause 1 Original provision: The US President has power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. What India kept: The basic concept of executive clemency vested in the head of state for federal offences. 2. Government of India Act, 1935 — Section 295 Original provision: The Governor-General acting in discretion had power to suspend, remit, or commute sentences of death. What India kept: The structure of pardoning power covering court martial, Union-law offences, and death sentences. 3. British Crown — Royal Prerogative of Mercy Original provision: The Sovereign had inherent prerogative to pardon any offence and commute any sentence. What India kept: The idea that clemency is an executive (not judicial) function as a check on judicial outcomes. INDIA'S SPECIFIC ADAPTATIONS: 1. President acts on Council of Ministers' advice (Article 74) — Unlike the US where the President has personal discretion, India's power is exercised on ministerial advice. 2. Pardoning power extends to death sentences irrespective of whether the offence is under Union or State law — Reflects the gravity of taking life and ensures a national-level review. 3. Power is subject to judicial review — Unlike the virtually unreviewable US pardon power, Indian courts can review for arbitrariness, mala fide, or non-application of mind. 4. Governor also has parallel (but narrower) power under Article 161 — Federal structure preserved by giving States a role, but Governor cannot pardon death sentences.
Constituent Assembly Debate
DEBATED ON: 29th December 1948 and 17th October 1949 (CAD Volumes VII and X) DRAFT ARTICLE NUMBER: Draft Article 59 KEY SPEAKERS: 1. Mr. Tajamul Husain — Proposed deletion of clause 3; argued that only the President, as 'Supreme Head of the State', should have power over death sentences, citing American and English precedents. 2. An unnamed member (responding) — Argued the Governor is 'better informed' about local cases, is an appointee responsible to the legislature, and the power should be retained with Governors as a check. 3. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Clarified the general principles; rejected amendments and supported the Draft Article as framed. MAJOR DISAGREEMENTS: 1. Whether Governors/Rulers of Indian States should share pardoning power over death sentences — Tajamul Husain wanted it exclusively with the President; the Assembly rejected this. 2. Clause 3 (Governor's power) — Debated whether concurrent clemency power undermines sovereignty; retained to preserve federal character. FINAL OUTCOME: Draft Article 59 was adopted without amendments on 29th December 1948; reopened on 17th October 1949 and adopted with a minor amendment. AMBEDKAR'S KEY QUOTE: Not recorded as a specific quotable statement on this article; he simply rejected all proposed amendments and supported the Draft.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Maru Ram v. Union of India (1980) — The President must exercise pardoning power on the advice of the Council of Ministers; it is not a personal discretion, and the advice of the Government binds the President. 2. Kehar Singh v. Union of India (1989) — The President can independently scrutinise evidence and arrive at a different conclusion on guilt; the power is subject to judicial review; grant of pardon is an act of grace, not a matter of right. 3. Dhananjoy Chatterjee v. State of West Bengal (1994) — Reiterated that the power under Articles 72 and 161 can be exercised only by Central and State Governments respectively, not by the President or Governor independently. 4. Epuru Sudhakar v. Govt. of Andhra Pradesh (2006) — Clemency decisions are subject to limited judicial review on grounds of: (a) non-application of mind, (b) mala fide intention, (c) extraneous or irrelevant considerations, (d) relevant material not considered, (e) arbitrariness. 5. Shatrughan Chauhan v. Union of India (2014) — Undue and unexplained delay in deciding mercy petitions can amount to a violation of Article 21 (Right to Life), and is a valid ground for commuting death sentence to life imprisonment. 6. Pawan Gupta v. Union of India (2020) — No inherent right to seek pardon, but if a mercy petition is filed, it must be considered fairly and justly by the President. NOTABLE DISSENTS: 1. No prominent recorded dissents; the evolution of law has been largely incremental and consensus-based across benches. SCHOLARS & JURISTS: 1. Justice V.R. Krishna Iyer (in Maru Ram) — Emphasized that public power under Article 72 'cannot run riot' and must keep sensibly to a steady course; arbitrary exercise is impermissible. 2. D.D. Basu — Noted that the Indian pardon power is the most diluted among major democracies due to subjection to both ministerial advice and judicial review. AMENDMENT HISTORY: 1. Constitution (Seventh Amendment) Act, 1956, s. 29 and Schedule — Omitted the words 'or Rajpramukh' from clause (3), consequent to abolition of Part B States and the office of Rajpramukh after States Reorganisation.