DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2022-23

TOPIC

“PARDONING POWER OF INDIAN PRESIDENT”

Submitted by- Submitted to-

Mihir Singh Satyal Dr. Atul Kumar Tiwari,
B.A.LL.B (Hons.) 4th Semester Asst. Professor (Law)
Enrollment No.- 210101087 Dr. RMLNLU, Lucknow

1
Acknowledgement
I have taken a lot of efforts for this project. However, this would have not been possible
without the kind support and help of many individuals. I would like to express my
sincere thanks to all of them. I express my deep gratitude to my teacher for the subject
Dr. Atul Kumar Tiwari, for giving me her exemplary guidance, monitoring and
constant encouragement throughout the project.

I would like to express my gratitude towards my parents and members of RMLNLU for
their kind support and encouragement which helped me in the completion of this project.
My thanks and appreciations also go to my colleague in developing the project and people
who willingly helped me out with their abilities.

Mihir Singh Satyal

Table of Contents

 Introduction
o Historical background

o Power of clemency in various

countries
o Scope of pardoning power 

 Purpose of pardoning power

 The clemency power and judicial review
 Instances in which the President has used
this power 
 Conclusion
 References 
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Introduction
The clemency power of the President is one of the powers which has been conferred on the
executive. Article 721 of the Indian Constitution2 confers the power of pardon on the
President and Article 1613 gives the same power to the Governor. The power of clemency has
been exercised for centuries. In the earlier period, the power was used by the kings for
gaining a political advantage while in today’s times the use and understanding of pardoning
power are more often associated with the concept of mercy and fairness.

The meaning of pardon can be termed as “clemency”, “amnestics”, “grace” or mercy, the
clemency power is mentioned in the written Constitution of many nations. The President’s
clemency power deals with providing justice to the people which is essentially a function of
the judiciary. 

Clemency power has become an integral part of every nation’s executive function. The power
is often criticized based on the doctrine of separation of power which is one of the famous
doctrines in the Constitution of India. 

Historical background
The practice of pardoning was widespread across the globe and has its origin from Ancient
Athens society, where a practice known as adeia facilitated a democratic pardon for individua

ls, who were successful in obtaining the approval of 6000 citizens by way of secret ballot.
Although the source of his clemency power was not an executive privilege, it is not difficult
to find similarities in the ancient concept of adeia and the present practice of pardon
consideration factors such as the public opinion about the individual sought to be pardoned. 

The concept of clemency was employed by the Ancient Romans. The primary objective is to
gain political advantage. The Romans used the clemency power to control the masses of
soldiers and citizens. For example, the Romans chose every tenth army troops of
transgressors and by doing this they created fear and discipline in the remaining soldiers. 
1
https://indiankanoon.org/doc/1008926/
2
coi-4March2016.pdf (legislative.gov.in)
3
Article 161 in The Constitution Of India 1949 (indiankanoon.org)

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The position in India in the context of pardon was very different from Athens and Romans. In
India, the King was regarded as the head of the State and the life of a person was totally in
the hand of the King, he may punish him or he may grant pardon to him but some sections of
the society were not given death sentences like Brahmin offenders and old men and children
below 5 years.

At the time of British rule, the power of clemency was endowed on the British monarch. In
the common law system, the power of pardon is regarded as an act of mercy in which the
King forgives any criminal offender. So, it is well said that the power of providing mercy to
the people is not a naive concept. 

Power of clemency in various countries

The American Constitution4 provides the President to grant reprieves or pardons

under Article II5 of Section 2 against the United States, except in the case of impeachment,
and includes the power to remit fines, penalties, and forfeitures, except as to money covered
into the treasury or paid to an informer. 

The modern-day concept of the pardoning power in the United States suggests that neither 
Congress nor the Courts can violate the President’s power to pardon. The power to pardon is
an enumerated power of the constitution itself, which is mentioned in Article 2 of the US
Constitution that it cannot be used in case of impeachment.

In the UK, the Constitutional monarch can grant a pardon6 to a conviction on the aid and
advice of the council of ministers. A pardon may be absolute and conditional. It is conditional
where it does not become operative until the grantee performs a certain act or avoids it. 

In Canada7, pardons are considered by the National Parole Board8 under the Criminal

Records Act9. The federal cabinet has the power to pardon individuals who have been
convicted for a criminal offense. The pardon can be free or conditional. 
4
U.S. Senate: Constitution of the United States
5
Constitution Annotated | Congress.gov | Library of Congress
6
The royal prerogative of mercy | Feature | Law Gazette
7
What is the exercise of clemency (Royal Prerogative of Mercy)? - Canada.ca
8
Parole Board of Canada - Canada.ca
9
Criminal Records Act (justice.gc.ca)

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Scope of pardoning power 

The scope of clemency power by the President under Article 72 of the Indian Constitution is
wider than the pardoning power of the Governor as mentioned under Article 161 of the
Indian Constitution. Article 72 condors the power on the President to grant pardon, reprieve,
respites, or remissions of punishment or to suspend, remit or commute the punishment of any
person convicted in crime in the following cases-

1. Where the punishment is by court-martial.

2. Where the punishment is for the offense against any law relating to the matters of
executive power of the union.

3. Where the sentence is a death penalty.

Article 161 confers the power of clemency on the Governor to grant pardon etc in certain
cases. The Governor of the State shall have the power to grant clemency, reprieves, respites,
or remission of punishment or to suspend or cancel or lessen the punishment of any person
convicted of any offense. 

The powers of President and Governor differs in the following ways:

1. The power of the President to grant clemency extends in the cases where the
punishment is by the Court Martial but Article 161 does not provide such power to
the Governor under Indian Constitution.

2. The President can allow pardon in all cases where the sentence of death  but the
pardoning power of the Governor does not extend to the death sentences cases. 

Purpose of pardoning power

A pardon is an act of granting mercy, forgiveness, clemency. The Constitution of India
empowers the President and Governors to grant mercy or pardon to any person. The President
is granted the power of clemency with the view that there should be provisions in the
legislation to save the person from the consequences of punishment adjudged by carelessness

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and mistake against that person by the judiciary. It is, for this reason, the provision of mercy
is included in the Constitution of India. 

As per the views that come forward about the existence of clemency in contemporary times.
One of them includes the Hegelian10 view that promotes clemency power which enhances
justice in society. Another one who believes in rehabilitation and redemption theory. The
belief is that the person should get a second chance to become a good person and their
reasoning is based on public welfare. 

The object of pardoning power is to correct judicial errors, for no human system of judicial
administration can be free from imperfections. The pardon is an instrument of mercy and the
way to correct those grave injustices either on their facts or by an anticipated operation of the
criminal’s laws that simply must be reminded. Hence, clemency power is an indispensable
element of even the perfect system of laws. 

The clemency power and judicial review

The clemency power of the President is not an absolute one but it is governed by the advice
of the Council of Ministers. The basic development served by the judicial system in the
context of the Article 72 and 161 allowing the judicial review. Judicial review is an
independent judiciary that assures the faith embodied in the Constitution of India. 

10
2 Parul Kumar.p65 (nujslawreview.org)

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There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. In a series of cases, the Supreme Court of India has laid
down the law relating to judicial review of clemency power. 

In Maru Ram v. Union of India (1981)11 the constitutional bench of the Supreme Court held
that the power to grant pardon under Article 72 is to be exercised on the advice of the Council
of ministers. The Supreme Court, in this case, laid down emphasis on the British practice
while arriving at this conclusion regarding the Indian position. 

The Supreme Court in Dhananjoy Chatterjee alias  Dhana v. State of West

Bengal(1994)12 case reiterated its earlier decision in Maru Ram and said that ‘the power
under Article 72 and Article 161 can be exercised by the Central and State Governments, not
by President and Governor on their own. The advice of the appropriate government binds the
head of the state’. In this case, the appellant Dhananjoy, a security guard was challenged and
tried for rape and murder and also for the offense under Section 380 of Indian Penal Code, for
committing theft of the wristwatch of Hetal Parekh, an 18 years old girl in her apartment. 

In the case of Kehar Singh v. Union of India (1989)13 a five-judge bench of the Supreme
Court has examined the scope of the President’s pardoning power under Article 72 in detail.
The petitioner, Kehar Singh, was convicted for the crime of murder for assassinating Prime
Minister Smt. Indira Gandhi’s sentence to death was confirmed by the High court and his
appeal to the Supreme court was also dismissed. He further filed a petitioner to the President
for the grant of pardon. The President rejected his petition on the advice of the Union
Government without considering the merits of the decision of the Supreme Court confirming
the death sentence. The court opined that the President in the exercise of his power under
Article 72, must scrutinize the evidence on record and come to a different conclusion both on
the guilt of Kehar Singh and the sentence imposed on him. The president does not amend,
modify, or supersedes the judicial record. The judicial record remains intact. The court need
not spell out specific guidelines for the exercise of power under Article 72 this is so because
the power under Art.72 is of the widest amplitude. The order of the President cannot be

11
1 SCC 107
12
(1994) 2 SCC 220
13
1989 AIR 653

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subjected to judicial review on its merits. Accordingly, it was held that the President must
consider the matter afresh with the law laid down in the present case.   

In a landmark case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) the
Supreme Court held that the clemency power of the President and Governor under Article 72
and Article 161 is subject to judicial review. 

The Supreme Court laid down certain grounds on which can be claimed by the petitioner for 
judicial review of the clemency power: 

1. If the order is passed without any application of mind.

2. If the order passed is malafide.

3. If the order passed on completely irrelevant considerations.

4. If the order suffers from arbitrariness.

The Apex Court states that the cases where the delay in mercy petition was unexplained of 6
to 12 years, then in those cases the death sentences must be commuted by life imprisonment.
There are many factors on which the order of clemency can be challenged like mental illness,
age of the accused, lack of legal aid, etc. The Court further observed that these powers rest
upon the highest authorities i.e. the President or the Governor of the State, as the case may be
and there is no word limitations mentioned in the Articles and they may grant remission as an
act of grace and humanity in appropriate cases. 

Instances in which the President has used this power 

There are so many instances in which the mercy petitions were granted by the President using
his power under Article 72 of the Indian Constitution. 

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Govindasamy14 (2000) was convicted for the offense of murder by brutally killing his
relatives in their sleep in 1984. He belonged to a poor family in Tamil Nadu. The reason
behind this act is that his parents were tortured over a land dispute. His merciful pleas were
rejected many times. Finally, the President considered his mercy petition after finding that
‘there was no eye-witness’ to the murders he was convicted for. 

Dharmendra Singh and Narendra Singh Yadav (1997)15 convicts for the offense of murder
from Uttar Pradesh were pardoned. In 1994 they had brutally killed a family of five including
a 15- year old girl child. Narendra Singh had tried to rape her a few days before, failing
which he conspired with Dharmendra Singh to teach them a lesson. Three people were
beheaded while a 10 year-old-boy was thrown alive into the fire. 

Another instance is of Shobhit Chamar (1998) a landless cobbler from Bihar Bhabua district
who won his pardon in 2011. He was condemned to death for killing 6 members of his upper-
caste landlord’s family including the children. 

Dhanajoy Chatterjee (1994)16, the accused who was sentenced to the death penalty for the
crime of rape and murder in the year 1990 and had filed mercy petitions to the Governor of
West Bengal. He was hanged after waiting for fourteen years when his mercy plea was
rejected by the President due to delay in exercising his clemency power. 

The mercy petition by Afzal Guru (2003)17 who had attacked the Indian parliament in 2001
and Azmal Kasab who was held responsible in Mumbai Attacks and who was sentenced to
death has been decided and rejected by the President recently. 

Besides these, there are a lot of cases in which mercy appeals are pending before the
President. The mercy appeal of Sushil Maru accused of brutally killing a five-year-old girl in
1995 and three Dalits from Bihar convicted for massacring people of upper caste
organizations are pending disposal before the President. 

Conclusion
14
Govt to pardon first on mercy plea list - Indian Express
15
1998 CriLJ 2064
16
(1994) 2 SCC 220
17
107 (2003) DLT 385

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The clemency power of the President is very significant as it corrects the errors in the
judiciary. The Constitution under Article 72 empowers the President to grant pardon,
suspend, remit or commute sentences including the death sentence. A parallel power is also
given to the Governor of the State under Article 161. As the judicial review is paramount in
our Constitution the clemency power of the President and Governor are subjected to limited
judicial power. It is a good development so far as it prevents the misuse of this constitutional
power by unscrupulous politicians in favor of people with power and influence. 

If this power is used properly by the judiciary and misused by the executive then, it would be
helpful to remove the flaws of the judiciary. The ‘justice delayed is justice denied’ phrase
suits the clemency power since there are many instances where there is an unexplainable
delay in replying to the petitions. If it takes a long time to resolve the matter, then the
clemency power will be more of denial of justice rather than a way to justice. 

References 

 https://core.ac.uk/download/pdf/323046471.pdf

 http://www.legalservicesindia.com/article/1572/Power-of-pardon.html

 http://www.legalserviceindia.com/article/l149-Presidential-Pardon.html

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 Executive clemency power : a comparative study – iPleaders

 http://www.legalserviceindia.com/legal/article-2331-power-to-pardon-
unbridled-.html

 https://www.lawctopus.com/academike/pardoning-power-of-president-recent-
developments/

 https://www.indiatoday.in/magazine/special-report/story/20120625-pratibha-
patil-mercy-petitions-accepted-758790-2012-06-15

 http://archive.indianexpress.com/news/govt-to-pardon-first-on-mercy-plea-list/
535066/

 https://timesofindia.indiatimes.com/india/President-commutes-Jharkhand-
residents-death-penalty-to-life/articleshow/11969620.cms

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