Pardoning Powers Of President And Governor Under Indian Constitution

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Pardoning Powers Of President And Governor Under Indian Constitution

Written By:– Hrishika Rawat


A pardon is a decision by the government or the executive branch to exonerate a person of culpability for an alleged crime or other legal infraction as if the conduct never happened.

Why Need Pardon?

Individuals may be given pardons if they have proven that they have “paid their debt to society” or are otherwise deemed deserving of them. Pardons are occasionally granted to those who have been wrongly convicted or who allege to have been wrongfully convicted. Pardons are often viewed as a means of combatting corruption since they allow a specific authority to bypass a defective legal procedure in order to release someone who has been wrongfully condemned.

Judicial Remedies

1.     File a review Petition at Supreme Court of India, thereafter

2.     File a Curative Petition headed by five senior-most Judges of the Supreme Court of India.

Pardoning Power Of President And Governor

The governor or the President can give a pardon or decrease the court’s punishment even if a minimum is stipulated by Articles 73 and 161 of the Constitution, which is distinct from judicial jurisdiction. As a result, there is no dispute that the President or the governor has the authority to give a pardon or lower the sentence.

For example, in the case of Commander Nanavati who was held guilty of murder, the governor gave him a pardon although the minimum sentence for murder is a life sentence.

Pardoning is a compassionate act that lessens the penalty imposed by the law and restores the rights and privileges lost as a result of the offense. Except in a few circumstances, the Indian Constitution enables the President to issue pardons, and Article 161 empowers the governor to grant pardons. It can be given to anyone who has been convicted of any crime against the law or condemned to death by a court-martial (military court). The purpose of pardoning authority is to remedy potential judicial errors because no human system of judicial administration is without flaws.

Pardoning Power Of President Of India: Article 72:

According to Article 72, the president has the authority to issue pardons, reprieves, respites, or remissions of penalty, as well as to suspend, remit, or commute the sentence of anybody guilty of a crime.

The Indian President’s pardoning powers are outlined in Art 72 of the Indian Constitution. There are five distinct sorts of pardons that are legally required.

Pardoning someone implies totally absolving them of their wrongdoing and allowing them to go free. The pardoned felon will be treated as if he or she were a regular citizen.

Communication refers to the process of altering the sort of punishment meted out to the guilty into a less severe one, such as a death sentence being commuted to a life term.

Reprieve: A guilty person is granted a reprieve from the execution of a punishment, generally a death sentence, to enable him time to petition for a Presidential Pardon or another legal remedy to establish his innocence or effective rehabilitation.

Respite: refers to a reduction in the severity or amount of a criminal’s sentence due to exceptional circumstances, such as pregnancy or mental illness.

 Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

Pardoning Power Of Governor: Under Article 161:

The Governor has the authority to issue pardons and to suspend, remit, or commute sentences in specific circumstances. The Governor of a State has the authority to give pardons, reprieves, respites, or remissions of penalty, as well as to suspend, remit, or commute the sentence of any individual guilty of violating any law related to a topic over which the State’s executive power has jurisdiction.

The Article deals with the power of the Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases. The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends. Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites, or remissions of punishment or suspend, remit, or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive powers of the State extends.

Difference Between Pardoning Powers Of President And Governor:

The President’s pardoning power under Article 72 is more expansive than the Governor’s pardoning power under Article 161. There are two ways in which power differs:

  • Court martial: The President’s ability to give pardon applies to instances when the punishment or sentence is imposed by a Court Martial, but the Governor lacks such authority under Article 161.
  • Death sentence : The President has the ability to issue pardons in all situations where the penalty is death, while the Governor’s power does not extend to death sentences. Even if a state law mandates the death penalty, the President, not the governor, has the authority to issue a pardon.

Pardoning Power Under Judicial Review:

The question of whether or not the executive’s ability to pardon should be subject to judicial scrutiny has long been a point of contention. The law pertaining to judicial review of pardoning authority has been established by the Supreme Court in a series of judgments.

The Constitutional Bench of the Supreme Court decided in Maru Ram v Union of India that the President’s power under Article 72 must be utilized on the recommendation of the Central Government, not on his own and that the advice of the Government binds the head of the Republic.

In Kehar Singh v Union of India, the Supreme Court restated its previous position, holding that the President’s pardon is an act of grace and hence cannot be claimed as a matter of right. Because the President’s powers are solely administrative in nature, they are not justiciable.

In Swaran Singh v State of Uttar Pradesh, the Governor of Uttar Pradesh ordered remission of the life sentence given to a Minister of the State Legislature of Assembly guilty of murder. The Supreme Court overturned the Governor’s order, saying that while it does not have the authority to interfere with an order issued by the Governor under Article 161, such power cannot be exercised arbitrarily, mala fide, or in complete disregard of the “finer canons of constitutionalism,” and that in such cases, “the judicial hand must be stretched to it.”  The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

The Governor granted respite under Article 161 in the early case of K.M. Nanavati v State of Bombay, which was found illegal since it contradicted Supreme Court judgments under Article 145.

The Supreme Court decided in Epuru Sudhakar & Anr versus Govt. of A.P. & Ors that it is a well-established concept that the Supreme Court and High Courts have limited judicial review of the use of mercy powers. The President’s or Governor’s grant of mercy might be contested on the following grounds:

  • The order has been passed without application of mind.
  • The order is mala fide.
  • The order has been passed on extraneous or wholly irrelevant considerations.
  • Relevant material has been kept out of consideration.
  • The order suffers from arbitrariness.

Process Of Granting Pardon In India:

The procedure begins with the President receiving a mercy plea under Article 72 of the Constitution. The petition is subsequently forwarded to the Central Government’s Ministry of Home Affairs for review. The Home Ministry is debating the above-mentioned petition in collaboration with the appropriate state government. Following the consultation, the Home Minister makes suggestions, and the petition is then sent back to the President.


The Executive’s pardoning power is extremely important since it corrects the judiciary’s mistakes. It removes the impact of a conviction while leaving the defendant’s guilt or innocence unaffected. The procedure of granting a pardon is simpler, however, due to the government’s sluggishness and political concerns, mercy requests are often delayed. As a result, an urgent change to the pardoning legislation is required to ensure that clemency requests are processed swiftly. There should be a deadline for deciding on clemency petitions.  

In terms of the judicial review argument, the power of pardoning should not be unlimited, and the judiciary should not meddle excessively in the use of this authority. Pardoning authority should be subjected to limited judicial scrutiny since judicial review is a fundamental component of our Constitution. If this power is used correctly and not abused by the executive, it will undoubtedly help to correct the defects in the system.

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