India's Pardoning Power: Analyzing the Supreme Court's 2024 Mandate on Mercy Petitions

Introduction: A New Era for Clemency Jurisprudence

In a significant move to uphold procedural fairness and the fundamental rights of convicts, the Indian justice system is witnessing a pivotal reform in the handling of mercy petitions. This follows a landmark directive from the Supreme Court of India in late 2024, which addressed the “dehumanizing effect” of inordinate and unexplained delays in the disposal of such pleas. The Court, taking cognizance of the prolonged agony faced by convicts on death row in the case In Re: Inhuman Delays in Mercy Petitions, mandated that all States and Union Territories establish specialized, time-sensitive units to ensure the swift and efficient processing of mercy petitions. This directive aims to institutionalize a remedy for a systemic issue that has long plagued the final stage of the criminal justice process.

Responding with notable alacrity, the state of Maharashtra became one of the first to implement this judicial mandate by establishing a dedicated cell within its Home Department. This unit is tasked with streamlining the entire lifecycle of a mercy plea—from its submission by a convict to the collation of necessary documents, obtaining comments from relevant departments, and forwarding the case to the Governor or, subsequently, the President. The Supreme Court’s 2024 intervention is not merely a procedural guideline; it represents a profound reaffirmation of the Right to Life under Article 21 of the Constitution, which has been interpreted to include the right to a life with dignity, free from the psychological torture of indefinite waiting. While clemency itself remains an act of grace, the Court has firmly established that the process governing it must be fair, just, and reasonable. This development marks the latest chapter in the long and complex evolution of pardoning power in India, a power that sits at the delicate intersection of executive authority, judicial finality, and fundamental human rights.

Historical Evolution of Pardoning Power in India

The concept of sovereign clemency is not a modern invention but a power that has been wielded by rulers for millennia, symbolizing the ultimate authority of the state to dispense mercy beyond the rigid confines of law.

Ancient and Medieval India: Early Indian legal texts like the Manusmriti and Kautilya’s Arthashastra contain references to the king’s prerogative to pardon offenders. This power was seen as an essential attribute of kingship, allowing the ruler to temper justice with mercy, often for reasons of state, religion, or personal discretion. During the Mughal era, the Emperor held the absolute power to grant pardons, a practice that continued to reinforce the sovereign’s ultimate judicial authority.

British Colonial Rule: The modern constitutional framework for pardoning power in India is a direct inheritance from the British system. The Government of India Act of 1935 was the first legislation to formally codify this power, granting it to the Governor-General at the central level and the Governors in the provinces. This structure laid the groundwork for the provisions that would later be debated and enshrined in the Constitution of independent India.

Constituent Assembly Debates: During the framing of the Indian Constitution, the inclusion of pardoning powers under Articles 72 and 161 was a subject of intense discussion. Members of the Constituent Assembly recognized the necessity of such a “safety valve” in the justice system. Their primary rationale was twofold: first, to correct potential judicial errors that might have escaped the appellate process, and second, to provide a mechanism for showing mercy on humanitarian grounds that the law itself could not accommodate. As Shri K.M. Munshi argued, this power was essential “to save a man from the gallows whom a judicial error might have placed in that position.” The debates clarified that this power was not to be a personal privilege of the President or Governor but an executive function to be exercised on the aid and advice of the elected government, ensuring its democratic accountability.

Fun Fact: The term “reprieve” originates from the Old French word “reprouver,” meaning to “disapprove of” or “reject.” In a legal context, it evolved to mean the temporary rejection or postponement of a sentence, giving a convict a “second chance” or time for further appeals.

The Constitutional Framework of Clemency: Articles 72 and 161

The power to grant pardons, formally known as clemency power, is explicitly detailed in the Constitution of India. It is vested in the President of India and the Governors of the states, acting as a final constitutional resort for convicts who have exhausted all judicial remedies.

• President’s Pardoning Power (Article 72): This article confers upon the President 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 offense in all cases where:

  • The punishment or sentence is by a Court-Martial (a military court).
  • The punishment or sentence is for an offense against any law relating to a matter to which the executive power of the Union extends.
  • The sentence is a sentence of death.

• Governor’s Pardoning Power (Article 161): This article grants the Governor of a state a similar power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offense against any law relating to a matter to which the executive power of the state extends.

It is crucial to understand that this is not a discretionary power exercised in a personal capacity. Both the President and the Governor are constitutionally bound to act on the aid and advice of the Council of Ministers. The 42nd and 44th Constitutional Amendments made it explicit that the President is bound by the advice of the cabinet, making the decision-making process a function of the executive branch of the government.

Comparative Analysis: President vs. Governor

While the underlying principle of their clemency powers is the same, the scope and extent of their authority differ in two critical aspects.

The Five Facets of Clemency: A Deeper Look

The Constitution provides a nuanced toolkit of five distinct types of clemency, each with a specific legal effect. Understanding these distinctions is vital for appreciating the flexibility of the pardoning power.

1. Pardon: This is the most absolute form of clemency. It completely absolves the convict from all sentences, punishments, and subsequent disqualifications. It is as if the offense was never committed. For example, a person pardoned would be eligible for government employment, which they might have been barred from due to the conviction.

2. Commutation: This involves the substitution of a punishment with a lighter form. The nature of the sentence is changed. The most common example is commuting a death sentence to rigorous life imprisonment. Another could be commuting rigorous imprisonment to simple imprisonment.

3. Remission: This implies reducing the period of a sentence without changing its character. For instance, a sentence of 10 years of rigorous imprisonment could be remitted to 5 years, but the imprisonment would remain rigorous.

4. Respite: This denotes awarding a lesser sentence than the one originally awarded due to some special circumstance. This is a humanitarian consideration. For example, if a woman offender is pregnant or a convict has developed a severe physical disability, the President or Governor may grant a respite.

5. Reprieve: This means a temporary stay on the execution of a sentence, especially a death sentence. The purpose of a reprieve is to give the convict time to seek a pardon or commutation from the President or to exhaust any remaining legal avenues.

Mnemonic for the 5 Types of Clemency: To remember the effect of each, think: “Pardon Cancels, Commutation Changes, Remission Reduces, Reprieve Rests (pauses), and Respite Relieves (in special cases).”

The Procedure for Mercy Petitions: A Labyrinthine Journey

The process of filing and deciding a mercy petition is a formal, multi-stage administrative procedure involving both the state and central governments.

1. Filing the Plea: After a convict’s sentence has been upheld by the highest court (the Supreme Court), they can file a mercy petition. This is typically submitted to the President of India through the prison authorities where the convict is lodged.
2. State Government’s Role: The petition is first sent to the Home Department of the concerned state government. The state government provides its comments and recommendations on the plea, along with all relevant case records, including the trial court judgment, high court judgment, police investigation reports, and any medical reports.
3. Union Home Ministry’s Examination: The petition, along with the state’s feedback, is then forwarded to the Ministry of Home Affairs (MHA) at the Union level, which acts as the nodal ministry. The MHA meticulously examines the case, considering the merits, the grounds raised in the petition, and the views of the state government.
4. Advice of the Council of Ministers: Based on its examination, the MHA prepares a summary and tenders its advice to the Prime Minister, who then advises the President. The final advice tendered by the Council of Ministers to the President is binding.
5. Presidential Decision: The President acts on the advice of the Council of Ministers to either accept or reject the mercy plea. The decision is then communicated back to the MHA, which informs the state government and the convict.

Analogy: The mercy petition process can be likened to a final, high-level administrative review rather than a judicial hearing. It’s not about re-judging the guilt or innocence of the convict but about assessing whether there are compelling reasons—humanitarian, social, or legal—to grant clemency, which fall outside the strict purview of the courts.

The Role of Judicial Review: Checking the Executive’s Final Say

For a long time, the pardoning power was considered an absolute executive privilege, immune from judicial scrutiny. However, the Supreme Court of India has progressively carved out a limited but crucial role for judicial review in this domain, ensuring that the power is not exercised arbitrarily.

Maru Ram v. Union of India (1980): This was a landmark case where the Supreme Court definitively held that the power under Article 72 is not absolute. The Court ruled that it must be exercised in a manner that is fair and non-arbitrary and that the decision could be challenged in court on grounds of arbitrariness, mala fides, or if it was based on wholly extraneous and irrelevant considerations. This judgment opened the door for judicial oversight.

Kehar Singh v. Union of India (1989): In this case, involving the assassin of Prime Minister Indira Gandhi, the Court reaffirmed the principle of judicial review but also clarified its limits. It stated that the court cannot delve into the merits of the President’s decision or substitute its own judgment. The review is limited to the process and the grounds of the decision. The Court cannot ask “was the decision to pardon correct?” but can ask “was the decision made arbitrarily or with malicious intent?”.

Epuru Sudhakar v. Govt. of A.P. (2006): This judgment provided the most comprehensive framework for the judicial review of clemency powers. The Supreme Court laid down the specific (though not exhaustive) grounds on which a pardon or remission could be challenged:

• The order was passed without application of mind.
• The order is mala fide (e.g., pardoning a political associate for a serious crime purely for political gain).
• The order has been passed on extraneous or wholly irrelevant considerations.
• Relevant material has been kept out of consideration.
• The order suffers from arbitrariness.

The Jurisprudence of Delay: The “Dehumanizing Effect”

The most significant evolution in clemency jurisprudence over the past few decades has been the judiciary’s response to delays in deciding mercy petitions. The Supreme Court has repeatedly held that an inordinate and unexplained delay is a supervening circumstance that can justify the commutation of a death sentence to life imprisonment.

Shatrughan Chauhan v. Union of India (2014): This is the seminal judgment on the issue. A three-judge bench of the Supreme Court laid down clear guidelines and recognized several grounds for commuting death sentences, including:

• Inordinate Delay: The court held that prolonged delay is a form of psychological torture that violates the convict’s rights under Article 21.
• Insanity/Mental Illness: The court ruled that executing a person who has become mentally ill while on death row would be a violation of human dignity.
• Solitary Confinement: The judgment condemned the practice of keeping death row convicts in solitary confinement before the rejection of their mercy petition.

The 2024 Supreme Court directive builds directly upon the foundation laid by the Shatrughan Chauhan case. While the 2014 judgment provided a remedy after the delay had occurred, the 2024 mandate is a proactive measure aimed at preventing the delay itself. By ordering the creation of dedicated cells, the Court is institutionalizing efficiency and accountability within the executive branch, ensuring that the “dehumanizing effect” of indefinite waiting is minimized from the outset. This shifts the focus from post-facto correction to systemic prevention. The Court noted that “a right deferred is a right denied, and in the context of a mercy plea, a life held in indefinite suspense is a life unjustly tormented.”

Statistic: Between 2010 and 2020, the average time taken by the President of India to decide on a mercy petition was over five years. In some cases, the delay extended to more than a decade, highlighting the systemic nature of the problem the Supreme Court sought to address in 2024.

Critical Policy Appraisal

Analytical Lens: UPSC Focus (Mains & Prelims)

Conceptual Basis

The legal and constitutional backbone of the subject is found in Article 72 (President’s Pardoning Power) and Article 161 (Governor’s Pardoning Power) of the Indian Constitution. These articles are further interpreted and shaped by landmark Supreme Court judgments, most notably Maru Ram v. Union of India (1980), Kehar Singh v. Union of India (1989), and Shatrughan Chauhan v. Union of India (2014).

UPSC Integration: Connecting the Dots

• GS Paper 2 (Polity & Governance): This topic is central to the study of the Indian Executive (President, Governor), the Judiciary (judicial review), and fundamental rights (Article 21). It exemplifies the checks and balances between the executive and judiciary.
• GS Paper 4 (Ethics, Integrity, and Aptitude): The concept of mercy and clemency raises ethical questions about justice, retribution, and compassion. It can be used as a case study to discuss the role of empathy and ethical considerations in governance.
• GS Paper 1 (Modern Indian History): Understanding the evolution of these powers from the Government of India Act, 1935, provides historical context for the continuity and change in India’s constitutional framework.

Future Impact and Policy Relevance

The Supreme Court’s 2024 directive is a game-changer. By forcing states to create institutional mechanisms for timely disposal, it moves beyond judicial remedy to administrative reform. In the long term, this could lead to a more humane and efficient end-stage justice system. It will likely reduce the number of death sentences being commuted solely on the grounds of delay, thereby forcing the executive to confront the merits of each mercy plea more directly. This development also strengthens the “right to dignity” under Article 21 and may indirectly fuel the larger debate on the abolition of the death penalty by highlighting the procedural and psychological challenges associated with its implementation. Furthermore, it sets a precedent for judicial intervention to streamline executive processes where they intersect with fundamental rights.

Prelims Practice Question (MCQ)

Question: With reference to the pardoning powers in the Indian Constitution, which of the following statements is correct?

a) The Governor can pardon a death sentence, but the President cannot. b) The President’s power to grant pardon extends to sentences by Court-Martial, whereas the Governor has no such power. c) The exercise of pardoning power by the President is a discretionary power and not subject to judicial review. d) Both the President and the Governor have identical powers with respect to the remission and commutation of sentences.

Answer: (b) Explanation: The President’s pardoning power under Article 72 is wider than the Governor’s under Article 161. One of the key differences is that the President has the power to grant pardons, reprieves, etc., in cases where the sentence is by a Court-Martial (military court). The Governor does not have this power. Option (a) is incorrect as only the President can pardon a death sentence. Option (c) is incorrect as the power is not discretionary (it’s based on the aid and advice of the Council of Ministers) and is subject to limited judicial review. Option (d) is incorrect because their powers are not identical; the President’s jurisdiction over Union laws and death sentences makes his power broader.

Mains Sample Question (15 Marks)

Question: “The power of pardon is an executive function, but the Indian judiciary has played a crucial role in ensuring it is not a realm of absolute discretion.” Critically analyze this statement in the context of the jurisprudence surrounding delays in mercy petitions and the grounds for judicial review of clemency powers.

Mind Map Outline (Revision Structure)

• Mercy Petitions in India
  • Core Concept: Final constitutional resort for convicts after exhausting judicial remedies.
  • Recent Development (2024 SC Directive):
    • Mandated dedicated cells in all states to expedite processing.
    • Cited the “dehumanizing effect” of delays.
    • Linked to Article 21 (Right to Life and Dignity).
    • Example: Maharashtra’s implementation.
  • Constitutional Provisions:
    • Article 72: President’s Pardoning Power
      • Scope: Union Laws, Court-Martial, Death Sentences.
      • Binding Nature: Acts on aid and advice of the Council of Ministers.
    • Article 161: Governor’s Pardoning Power
      • Scope: State Laws.
      • Limitations: Cannot pardon death sentences or court-martial sentences.
  • Types of Clemency (The 5 Powers):
    • Pardon: Complete absolution.
    • Commutation: Lighter form of punishment.
    • Remission: Reduction of term, character unchanged.
    • Respite: Lesser sentence due to special facts (e.g., pregnancy).
    • Reprieve: Temporary stay of execution.
  • Judicial Review of Pardoning Power:
    • Initial Stance: Considered immune from review.
    • Evolution through Landmark Cases:
      • Maru Ram v. UoI (1980): Established that power is not absolute; reviewable for arbitrariness.
      • Kehar Singh v. UoI (1989): Limited review to the process, not the merits.
      • Epuru Sudhakar v. Govt. of A.P. (2006): Laid down specific grounds for review (mala fides, non-application of mind, etc.).
    • Jurisprudence on Delay:
      • Shatrughan Chauhan v. UoI (2014): Inordinate delay as a ground for commuting death sentence.
      • Recognized other grounds: insanity, solitary confinement.
  • Policy Analysis & Critique:
    • Challenges:
      • Lack of transparency.
      • Potential for political influence.
      • Systemic delays.
    • Way Forward:
      • Enforce timelines (as per 2024 directive).
      • Formulate clear guidelines.
      • Enhance transparency.