Introduction

The President of India is the constitutional head of the country. The Constitution of India, 1950 (COI) empowers the President with legislative, executive and judicial powers.

• Article 72 of the COI deals with the judicial power of the President also termed as pardoning power of the President.

Article 72, COI

• This Article deals with the power of the President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. It states that -

(1) The President 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.

(a) In all cases where the punishment or sentence is by a court Martial.

(b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.

(c) In all cases where the sentence is a sentence of death.

(2) Noting in subclause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

Characteristics of Pardoning Power

• A pardon is an act of grace. It cannot be demanded as a matter of right.
• A pardon not only removes the punishment but, in contemplation of the law, places the offender in the same position as if he had never committed the offence.
• Pardoning power may be exercised at any time after the commission of an offence.
• It is purely an executive function.

Limitation of Pardoning Power

• The President cannot exercise his power of pardon independent of the government.
• Article 74 of the COI limits the pardoning power of the President. It states that -

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Procedure for Pardoning Power

• Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice.
• The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

Reconsideration of Pardoning Power

• Although the President is bound by the Cabinet’s advice, Article 74 (1) empowers him to return it for reconsideration once.
• If the Council of Ministers decides against any change, the President has no option but to accept it.

Case Laws

• In Maru Ram v. Union of India (1981), the Supreme Court held the power of pardon, commutation and release under Article 72 of the COI cannot run riot and must keep sensibly to a steady course and that public power shall never be exercisable arbitrarily.
• In Kehar Singh v. Union of India (1989), the Supreme Court observed that the question as to the area of the President’s power under Article 72 falls within the judicial domain and can be examined by the Court by way of judicial review.
• In Dhananjoy Chatterjee v. State of West Bengal (1994), the Supreme Court held that the President has to act on the advice of the Council of Ministers while deciding mercy pleas.