India's Pardoning Power: Constitutional Mandates, Judicial Scrutiny, and the Evolving Clemency Debate

Introduction: The Philosophy and Purpose of Clemency

The power of pardon, a legacy of sovereign prerogative, is a fundamental feature of modern constitutional democracies, including India. It represents the ultimate authority of the state to dispense mercy, serving as a crucial humanizing element in the often rigid and fallible machinery of justice. This power is not merely an act of grace but a constitutional responsibility, designed to act as a final safety valve to correct potential judicial errors, relieve undue harshness, and align the administration of justice with evolving societal values. In the Indian context, this power is explicitly vested in the President of India and the Governors of the States, acting as a critical check on the judicial and legislative branches.

Historically viewed as an absolute and discretionary executive privilege, the exercise of pardoning power in India has undergone a profound transformation. The arc of its evolution bends decisively towards constitutionalism and accountability, driven by decades of assertive judicial scrutiny. The Supreme Court of India has progressively moved from a position of deference to one of active oversight, ensuring that this executive function is not exercised arbitrarily, for extraneous political considerations, or in a manner that undermines the rule of law.

This evolution has been dramatically highlighted by a series of recent landmark judgments. The Supreme Court’s intervention in the A.G. Perarivalan case (2022) underscored the binding nature of the state cabinet’s advice on the Governor. Even more recently and consequentially, the Court’s decision in January 2024 to quash the remission granted to the convicts in the Bilkis Bano case sent a powerful message against the arbitrary and fraudulent use of clemency powers. These rulings have reshaped the contours of the pardoning power, reinforcing that it is a duty coupled with discretion, to be exercised in good faith and in furtherance of public justice. This article provides a comprehensive analysis of India’s pardoning power, tracing its constitutional basis, the scope of its application, the evolving jurisprudence of judicial review, and the contemporary debates surrounding its use and misuse.

Fun Fact: The pardoning power can be seen as a constitutional echo of the ancient Indian concept of Kshama (forgiveness or mercy), which was considered a virtue of kings and rulers. Ancient texts like the Manusmriti and Kautilya’s Arthashastra discuss the monarch’s power to grant clemency as essential for maintaining social harmony and demonstrating royal authority.

The Constitutional Framework: Articles 72 and 161

The foundation of pardoning power in India is enshrined in two key articles of the Constitution: Article 72 for the President and Article 161 for the Governors. While they appear similar, their scope and application have crucial differences.

Article 72: The President’s Power of Pardon

Article 72 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:

1. The punishment or sentence is by a Court Martial.
2. The punishment or sentence is for an offense against any law relating to a matter to which the executive power of the Union extends.
3. The sentence is a sentence of death.

The President’s power is thus extensive, covering all of India and applying to a wide range of offenses. The inclusion of Court Martial verdicts and death sentences makes it the broadest clemency power in the nation. It is crucial to note that the President does not exercise this power in their personal capacity. As established in the landmark case of Maru Ram v. Union of India (1980), the President is bound by the aid and advice of the Union Council of Ministers. The power under Article 72 is, therefore, an executive power of the Union, exercised by the President on behalf of the government.

Article 161: The Governor’s Power of Pardon

Article 161 grants the Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.

The Governor’s power is co-extensive with the executive power of the state. However, it is narrower than the President’s power in two critical aspects:

1. Court Martial: The Governor has no power to interfere with sentences handed down by a Court Martial. This is exclusively the President’s domain.
2. Death Sentence: While a Governor can suspend, remit, or commute a death sentence, they cannot pardon it. The power to grant a full pardon for a death sentence, completely absolving the convict, rests solely with the President.

The following table provides a clear comparative analysis of these two crucial constitutional provisions.

The Five Facets of Clemency: A Deeper Look

The Constitution outlines five distinct types of clemency. Understanding their specific meanings is essential to grasp the nuances of the pardoning power.

1. Pardon: This is the most comprehensive form of clemency. A pardon completely absolves the convict of the crime and removes all sentences, punishments, and disqualifications. It is as if the crime was never committed. It restores the person to their original position of innocence in the eyes of the law.

2. Commutation: This involves the substitution of one form of punishment for a lighter one. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment. The nature of the sentence is changed.

3. Remission: This implies reducing the period of a sentence without changing its character. For instance, a sentence of rigorous imprisonment for ten years may be remitted to rigorous imprisonment for five years. The character of the punishment (rigorous imprisonment) remains the same.

4. Respite: This denotes awarding a lesser sentence in place of one originally awarded due to some special fact. This is usually granted in consideration of circumstances like the physical disability of a convict or the pregnancy of a woman offender. The nature of the punishment may be changed.

5. Reprieve: This means a temporary stay of execution of a sentence, especially one of death. Its purpose is to give the convict time to seek a pardon or commutation from the President. It does not change the sentence but merely postpones its execution.

Mnemonic for Prelims: To remember the five types of clemency, use the acronym P-C-R-R-R: People Can Really Rest & Relax (Pardon, Commutation, Remission, Respite, Reprieve)

The Evolving Landscape of Judicial Scrutiny

For many years after the Constitution’s adoption, courts maintained a hands-off approach, treating the pardoning power as a purely executive function beyond judicial review. However, this view has been systematically dismantled over the past four decades.

The Foundational Shift: From Discretion to Accountability

The first major shift came with Maru Ram v. Union of India (1980), where the Supreme Court, under Justice V.R. Krishna Iyer, emphatically declared that the power under Articles 72 and 161 is not a private act of grace but a public welfare power. The Court held that this power must be exercised on the advice of the central or state government, not by the President or Governor’s personal discretion, and that its exercise must be in line with constitutional principles.

This was further solidified in Kehar Singh v. Union of India (1989). While the Court stated that the President’s order is not subject to appeal and that the judiciary cannot delve into the merits of the decision, it hinted that the choice of the President was not “unfettered.”

Laying Down the Grounds for Review: Epuru Sudhakar

The most definitive pronouncement on the justiciability of pardoning power came in Epuru Sudhakar v. Government of Andhra Pradesh (2006). The Supreme Court laid down clear, albeit limited, grounds on which a pardon order could be challenged in court. It ruled that a pardon could be subject to judicial review if the order was:

• Passed without application of mind.
• Mala fide (passed with malicious intent).
• Passed on extraneous or wholly irrelevant considerations.
• Relevant material was kept out of consideration.
• Suffering from arbitrariness.

This judgment was a watershed moment, transforming the pardoning power from a sovereign prerogative to a constitutionally constrained power subject to the basic structure doctrine, particularly the rule of law.

Analogy: The pardoning power is like a constitutional emergency brake. It is not meant for regular use to bypass the normal functioning of the judicial system (the car’s primary brakes). Instead, it is a powerful mechanism to be used in exceptional circumstances to prevent a catastrophic failure of justice, and its use must be justified and transparent.

Recent Flashpoints: Perarivalan and the Bilkis Bano Case

The principles laid down in Epuru Sudhakar have been tested and reinforced in recent high-profile cases, fundamentally altering the dynamics between the executive, the judiciary, and the gubernatorial office.

A.G. Perarivalan v. State of Tamil Nadu (2022)

This case involved one of the convicts in the Rajiv Gandhi assassination case. The Tamil Nadu State Cabinet, in 2018, recommended the remission of his sentence and his release under Article 161. However, the Governor sat on this advice for over two years before forwarding the file to the President of India, claiming the President had jurisdiction.

In a landmark judgment in May 2022, the Supreme Court ordered the release of Perarivalan by invoking its extraordinary powers under Article 142 to do “complete justice.” The Court made several critical observations:

• Binding Nature of Advice: It unequivocally affirmed that the Governor is bound by the aid and advice of the State Council of Ministers in the exercise of power under Article 161.
• Gubernatorial Inaction: The Court strongly deprecated the Governor’s inordinate delay, stating that such inaction was contrary to constitutional principles.
• Federalism: The judgment reinforced the federal structure by holding that the Governor’s attempt to refer the matter to the President, after the state cabinet had rendered its advice, was unconstitutional.

The Bilkis Bano Case: A Rebuke to Arbitrary Remission (2024)

Perhaps the most significant recent development is the Supreme Court’s judgment in January 2024, in Bilkis Bano v. Union of India & Ors., which quashed the remission granted by the Gujarat government to 11 men convicted of gang-raping Bilkis Bano and murdering her family members during the 2002 Gujarat riots.

On August 15, 2022, the Gujarat government ordered the premature release of the 11 convicts, who were serving life sentences. This decision sparked widespread public outrage and was challenged before the Supreme Court. The Court’s judgment was a scathing indictment of the Gujarat government’s actions. The key takeaways from this historic ruling are:

1. Jurisdiction and “Appropriate Government”: The Court clarified a critical legal question. It ruled that the “appropriate government” to decide on remission under the Code of Criminal Procedure (CrPC) is the government of the state where the trial was concluded, not where the crime was committed or the prisoners are incarcerated. Since the trial was transferred from Gujarat to Maharashtra for the sake of fairness, the Maharashtra government was the sole authority to consider remission.
2. Usurpation of Power: The Court held that the Gujarat government had “usurped” the power of the Maharashtra government and was not competent to pass the remission orders.
3. Fraud on the Court: The judgment revealed that the remission was based on a previous Supreme Court order that was obtained by suppressing facts and committing “fraud upon the court.”
4. Rule of Law over Discretion: The Court powerfully stated, “Rule of law is the bedrock of our democracy… The faith of the people in the administration of justice is of utmost importance.” It held that allowing the convicts to remain free would be a violation of the rule of law. The remission orders were deemed “stereotyped,” non-reasoned, and passed without application of mind.

The Bilkis Bano judgment serves as a powerful deterrent against the political misuse of remission powers and has firmly re-established that such decisions must be legally sound, non-arbitrary, and taken by the competent authority.

Statistic: The issue of delay is a significant concern. A 2021 report by a legal research group noted that, on average, mercy petitions in India have historically taken several years to be decided, with some cases languishing for over a decade, leading the Supreme Court to intervene on humanitarian grounds.

Critical Policy Appraisal

The pardoning power, while essential, is a double-edged sword. Its application requires a delicate balance between mercy and justice, a balance that is often difficult to achieve.

Analytical Lens: UPSC Focus (Mains & Prelims)

Conceptual Basis

The legal and constitutional backbone of the pardoning power in India is unequivocally rooted in Article 72 (President’s Power) and Article 161 (Governor’s Power) of the Constitution of India. These articles must be read alongside the principles of executive action and ministerial advice laid down in Articles 74 and 163, and the Supreme Court’s power to do complete justice under Article 142.

UPSC Integration: Connecting the Dots

This topic has strong linkages with multiple areas of the UPSC syllabus:

• GS Paper 2 (Polity & Governance):
  • The Executive: Directly relates to the powers and functions of the President and Governor.
  • The Judiciary: Explores the concept of judicial review and the evolving relationship between the judiciary and the executive.
  • Federalism: The roles of the President and Governor, and the jurisdiction of Union vs. State governments (as highlighted in the Perarivalan and Bilkis Bano cases), are core federal issues.
  • Constitutional Provisions: Requires a deep understanding of specific articles and their interpretation.
• GS Paper 4 (Ethics, Integrity, and Aptitude):
  • The exercise of pardoning power involves ethical considerations of compassion, justice, fairness, and integrity.
  • Its misuse raises questions about the abuse of power, lack of accountability, and erosion of public trust.
• GS Paper 1 (Indian Society):
  • High-profile cases involving clemency often have significant social ramifications, impacting debates on social justice, women’s safety, and the rights of victims versus the rights of convicts.

Future Impact and Policy Relevance

The future of pardoning power in India is headed towards greater constitutionalism and procedural fairness. The Supreme Court’s recent judgments indicate a clear trend: while the power itself will remain with the executive, its exercise will be increasingly subject to judicial oversight to prevent it from becoming a tool of political expediency. The Bilkis Bano judgment, in particular, has set a powerful precedent that will force state governments to be far more cautious and legally rigorous when considering remission. The long-term policy implication is a potential push for a more structured framework, possibly through legislation or codified guidelines, that governs the exercise of clemency, ensuring transparency, time-bound decisions, and a clear rationale for each case.

Prelims Practice Question (MCQ)

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

1. The power of the President to grant pardon extends to sentences by a Court Martial, while the Governor does not have this power.
2. Both the President and the Governor have the power to pardon a sentence of death.
3. The exercise of pardoning power by the Governor is based on the advice of the Union Home Ministry.

Select the correct answer using the code given below: (a) 1 only (b) 1 and 2 only (c) 2 and 3 only (d) 1, 2 and 3

Answer: (a) 1 only

Explanation:

• Statement 1 is correct. Article 72 explicitly grants the President the power to pardon sentences from a Court Martial. Article 161, which defines the Governor’s powers, contains no such provision.
• Statement 2 is incorrect. Only the President has the power to pardon a death sentence. The Governor can only suspend, remit, or commute a death sentence but cannot grant a full pardon.
• Statement 3 is incorrect. The Governor exercises their pardoning power under Article 161 on the aid and advice of the State Council of Ministers, not the Union Home Ministry.

Mains Sample Question

Question (15 Marks): “The pardoning power of the executive, once a matter of sovereign privilege, is now firmly within the ambit of constitutional accountability.” In light of recent Supreme Court judgments, critically analyze this evolution and discuss the challenges that persist in its application.

Mind Map Outline (Revision Structure)

• Pardoning Power in India
  • Introduction & Philosophy
    • Concept: A constitutional safety valve for mercy and justice.
    • Evolution: From sovereign prerogative to a constitutionally constrained power.
    • Key Recent Cases: A.G. Perarivalan (2022), Bilkis Bano (2024).
  • Constitutional Framework
    • Article 72: President’s Power
      • Scope: Union Laws, Court Martials, Death Sentences.
      • Binding Advice: Union Council of Ministers (Maru Ram case).
    • Article 161: Governor’s Power
      • Scope: State Laws.
      • Limitations: No power over Court Martials, cannot pardon death sentences.
      • Binding Advice: State Council of Ministers.
    • Comparative Table: President vs. Governor.
  • Types of Clemency (P-C-R-R-R)
    • Pardon: Complete absolution.
    • Commutation: Lighter form of punishment.
    • Remission: Reduction of term, not character.
    • Respite: Lesser sentence due to special facts.
    • Reprieve: Temporary stay of execution.
  • Judicial Scrutiny & Landmark Cases
    • Foundational Principles
      • Maru Ram v. UoI (1980): Power exercised on cabinet’s advice.
      • Kehar Singh v. UoI (1989): Merits not appealable, but power not unfettered.
    • Grounds for Review
      • Epuru Sudhakar v. Govt. of A.P. (2006): Established review on grounds of mala fides, arbitrariness, non-application of mind.
    • Recent Landmark Judgments
      • A.G. Perarivalan v. State of TN (2022)
        • Governor bound by state cabinet advice.
        • Inaction unconstitutional.
        • Use of Article 142 for “complete justice.”
      • Bilkis Bano Case (2024)
        • “Appropriate Government” defined (state of trial).
        • Quashed remission due to “usurpation of power” and “fraud.”
        • Reinforced Rule of Law over arbitrary discretion.
  • Policy Analysis & Debates
    • Critical Policy Appraisal Table
      • Challenges: Political misuse, opacity, delays.
      • Opportunities: Check on judiciary, humanizes law, accountability.
    • Way Forward: Need for transparent, time-bound guidelines.
  • UPSC Analytical Focus
    • Conceptual Basis: Articles 72, 161, 74, 163, 142.
    • Inter-Topic Linkages: GS-2 (Polity, Federalism), GS-4 (Ethics), GS-1 (Society).
    • Practice Questions: MCQ and Mains question.

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