The Power of Pardon: Executive Clemency in the Indian Legal System

When a court delivers its final verdict and a sentence is handed down, most people assume that’s where the story ends. But in India’s constitutional framework, there exists a remarkable power that sits above the courtroom – the executive power of pardon. Rooted in principles of mercy, humanitarian justice, and the correction of judicial errors, this power allows the President and Governors to intervene in criminal sentences, offering relief where the law alone may fall short.

The constitutional basis: Articles 72 and 161 🔗

Executive clemency in India is not a matter of discretion left to convention – it is explicitly enshrined in the Constitution. Article 72 empowers the President of India to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute any sentence. Article 161 confers a parallel but more limited power on the Governor of each state.

The scope of the President’s power under Article 72 covers three specific categories of cases: sentences imposed by a Court Martial (military court), sentences for offences against any Union law, and all cases where the sentence is one of death. The Governor’s power under Article 161, by contrast, applies only to offences against state laws – the Governor cannot interfere with court-martial sentences or federal crimes, and crucially, cannot pardon a death sentence.

The five forms of executive clemency 🔗

Executive clemency is not a single, one-size-fits-all act. The Constitution recognises five distinct forms, each serving a different purpose and degree of relief.

Pardon 🔗

A pardon is the most complete form of clemency. It fully absolves the convicted person of their sentence, punishment, and all legal disqualifications, restoring them to the position they would have been in had the offence never been committed. It erases the conviction entirely in the eyes of the law. As explained in the landmark U.S. case Ex parte Garland – a principle frequently cited in Indian jurisprudence – a full pardon reaches both the punishment prescribed and the guilt of the offender.

Commutation 🔗

Commutation substitutes a more severe punishment with a lesser one. The nature of the sentence changes, but the conviction itself remains on record. A death sentence, for instance, may be commuted to life imprisonment, which may further be reduced to rigorous or simple imprisonment. This is the most commonly exercised form of clemency in death penalty cases in India.

Remission 🔗

Remission reduces the duration or quantum of a sentence without altering its nature. A prison term of two years might be remitted to one year – the character of the punishment remains the same, only its length is shortened. This is a reduction in the amount of the sentence, not a change in its essential character.

Reprieve 🔗

A reprieve is a temporary stay of execution of a sentence. It is typically granted to allow a convict – particularly one on death row – time to file a mercy petition, pursue legal remedies, or await a final decision on commutation. It does not alter the sentence; it merely postpones its execution for a specific period.

Respite 🔗

A respite involves awarding a lesser punishment on account of special circumstances. These circumstances may include the pregnancy of a woman convict, the physical infirmity of the accused, or other mitigating personal factors. Unlike remission, a respite is tied to the particular situation of the individual rather than a general reduction in sentence length.

Why does this power exist? The rationale behind executive clemency 🔗

The judicial process, despite its safeguards, is not infallible. Evidence may be misread, witnesses may lie, and legal technicalities can result in outcomes that are disproportionately harsh or factually unjust. Executive clemency exists precisely to address these possibilities. Its two primary objectives are: to keep the door open for correcting judicial errors in the operation of law, and to provide relief from sentences that are regarded as unduly harsh.

It is important to understand what clemency is not: it is not a court of appeal, and it does not sit in judgment over the judicial process. The President’s pardoning power is an executive authority, separate from the judiciary – it operates in a different sphere entirely. Rather than reviewing whether the conviction was legally correct, the executive asks a different question: is there a humanitarian, moral, or public interest reason to mitigate this sentence?

This is why the power has deep roots in democratic theory. Justice must be tempered with mercy. The Constitution acknowledges that a rigid adherence to the letter of the law, without room for grace, can itself become a form of injustice.

How the power is exercised: procedure and accountability 🔗

While the Constitution vests this power in the President and Governors, it is not exercised by them personally and arbitrarily. In keeping with the principles of constitutional governance, the President exercises the pardoning power on the advice of the Council of Ministers, typically through the Home Minister. Similarly, the Governor acts on the advice of the State Cabinet.

The process begins with a mercy petition submitted by the convict or on their behalf. For Presidential pardons, the petition is reviewed by the Ministry of Home Affairs, which examines court judgments, case details, and may seek inputs from prison administrators or the sentencing court. A recommendation is then forwarded to the President for a final decision. For Gubernatorial pardons, the State Home Department performs this function.

This ministerial responsibility is a crucial check. It ensures that clemency decisions are not personal or arbitrary acts of grace, but deliberate exercises of constitutional power backed by institutional scrutiny.

Key differences between the President’s and Governor’s powers 🔗

Though both powers are broadly similar in form, there are significant differences in their scope. The most important distinction is that the Governor does not have the power to pardon death sentences – that power rests exclusively with the President of India. The Governor can, however, suspend or commute a death sentence while the mercy petition is pending before the President.

Second, the President’s power extends to sentences by Court Martial, which is entirely outside the Governor’s jurisdiction. Third, where there is an overlap – typically in cases involving offences under state law that have resulted in a death sentence – the Constitution ensures that the President is superior to the Governor in granting pardons for such cases. A mercy petition rejected by the Governor can still be presented to the President at a later stage.

Judicial review of clemency decisions 🔗

One of the most significant developments in the law of executive clemency has been the question of whether courts can review a pardon or a rejection of a mercy petition. For a long time, it was assumed that these decisions were purely executive in nature and beyond the reach of judicial scrutiny.

The Supreme Court has significantly qualified this position. In the landmark case of Maru Ram v. Union of India (1980), the Court held that the pardoning power must be exercised in accordance with the aid and advice of the Council of Ministers and cannot be the President’s personal discretion. In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Supreme Court made clear that the pardoning power is subject to judicial review if exercised arbitrarily, in bad faith, on wholly irrelevant considerations, or based on caste, religion, or political connections.

In Shatrughan Chauhan v. Union of India (2014), the Court went further, holding that undue delay in deciding mercy petitions can itself be a ground to commute a death sentence to life imprisonment, since prolonged uncertainty on death row constitutes mental agony amounting to a violation of the convict’s rights.

These judgments together establish a clear principle: clemency is not unchecked power. It must be exercised within constitutional bounds, free from malice and irrelevant considerations, and with reasonable promptness in capital cases.

Limits on the clemency power 🔗

The power of pardon is broad, but it is not unlimited. Neither the President nor any Governor can pardon a person convicted through impeachment proceedings – that falls outside the scope of Articles 72 and 161. Additionally, while the Governor’s power under Article 161 cannot be restricted by any statutory provision, the constitutional framework still requires that it be exercised consistently with principles such as equality under Article 14 and the rule of law.

It is also worth noting that in India, the President and Governor do not technically pardon the offence itself – they pardon the punishment and the sentence. The judicial record is not expunged or altered. The clemency operates on its consequences, not on the legal finding of guilt itself. This is an important conceptual distinction from some other legal systems.

A pardon granted on the basis of fraud or misrepresentation can also be revoked. The executive cannot be compelled to grant clemency, and the power can be declined even in cases where there appears to be a strong case for mercy.

The broader significance in the justice system 🔗

Executive clemency occupies a unique and irreplaceable role in any democratic justice system. Courts apply the law as it stands; the executive, through the pardon power, applies the principles of equity and humanity that the law alone cannot always accommodate. It is the safety valve in the constitutional machinery – the last resort when all judicial remedies have been exhausted and yet justice still feels incomplete.

In India, the power has been invoked in several high-profile cases involving death row convicts, political prisoners, and individuals whose sentences attracted significant public debate. Each exercise of clemency – or refusal of it – reflects a judgment about the relationship between punishment, mercy, and the public good.

As the Supreme Court observed in the context of clemency jurisprudence, executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. That remains as true today as when those words were first written.

What do you think? Should the process for deciding mercy petitions in India be made more transparent, with defined timelines and published reasoning? And given that Governors cannot pardon death sentences – does this create an appropriate constitutional balance, or does it concentrate too much power in the hands of a single authority at the Centre?

References

1. https://www.constitutionofindia.net/articles/article-72-power-of-president-to-grant-pardons-etc-and-to-suspend-remit-or-commute-sentences-in-certain-cases/
2. https://www.nextias.com/blog/pardoning-power-of-president-governor/
3. https://nehu.ac.in/public/downloads/Journals/Journal_Jul_Dec14_Art1.pdf
4. https://www.lawctopus.com/clatalogue/clat-pg/pardoning-power-of-the-president-and-governor/
5. https://vajiramandravi.com/upsc-exam/pardoning-powers-of-the-president/
6. https://testbook.com/ias-preparation/pardoning-power-governor
7. https://www.defactolaw.in/post/pardoning-power-of-governor