Pardoning Power in India - President vs. Governor & Recent Judicial Trends

The power of executive clemency, or the pardoning power, is a crucial constitutional mechanism in India, serving as a final safety valve in the justice system. It allows the head of the state to show mercy and prevent potential miscarriages of justice. This power is vested in the President of India and the Governors of the states, governed by Article 72 and Article 161 of the Constitution, respectively.

The Five Facets of Clemency

The Constitution provides for five distinct types of clemency that the President and Governor can grant. Understanding their nuances is critical.

1. Pardon: This is the most absolute form of clemency. It completely absolves the convict of all sentences, punishments, and disqualifications. It is like a full reset, making it as if the crime was never committed.
2. Commute: This involves substituting a punishment with a lighter one. For example, a death sentence can be commuted to rigorous imprisonment.
3. Remission: This reduces 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 of rigorous imprisonment.
4. Respite: This involves awarding a lesser sentence than the one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
5. Reprieve: This implies a temporary stay on the execution of a sentence, especially a death sentence. This allows the convict time to seek a pardon or other legal remedies from the President or the courts.

Mnemonic for the 5 Types of Clemency: To remember the five powers, think of a “Pleading Convict’s Urgent Request”: P-ardon, C-ommute, R-emission, R-espite, R-eprieve

President vs. Governor: A Comparative Analysis

While both the President and the Governor possess pardoning powers, their scope is not identical. The key differences are a frequent focus area in the UPSC exams.

Fun Fact: The concept of sovereign pardoning power in India is a legacy of the British system, where the monarch held the “royal prerogative of mercy.” The Government of India Act, 1935, contained similar provisions for the Governor-General.

Judicial Scrutiny and the Evolving Landscape

A common misconception is that pardoning power is an absolute and unchecked power of the executive. The Supreme Court has clarified this in several landmark judgments.

In the Maru Ram v. Union of India (1980) case, the Court definitively held that the power under Articles 72 and 161 is not a personal power of the President or Governor but is to be exercised on the advice of the Council of Ministers.

Furthermore, in Epuru Sudhakar v. Govt. of A.P. (2006), the Supreme Court established that the exercise of pardoning power is subject to judicial review. A pardon can be challenged in court on grounds that the decision was made without application of mind, was mala fide, based on extraneous considerations, or was arbitrary.

The New Focus: Tackling Inordinate Delays

The most significant recent development has been the judiciary’s strong stance against procedural delays. While the Constitution does not prescribe a time limit for deciding mercy petitions, the Supreme Court has interpreted inordinate and unreasonable delays as a violation of the convict’s Article 21 (Right to Life and Personal Liberty).

In a series of observations and rulings through 2024 and early 2025, particularly concerning the Governor’s role in assenting to bills, the Supreme Court has signaled its intolerance for constitutional authorities sitting on files indefinitely. In a landmark April 2025 ruling on legislative bills, the Court declared that a Governor’s failure to act in a timely manner is “illegal, arbitrary, and unconstitutional.” While this was about bills, legal experts argue this principle logically extends to mercy petitions, reinforcing that the executive cannot use delay as a tool to deny justice. This judicial push ensures that the humanitarian aspect of clemency is not lost in bureaucratic or political inertia.

Analogy: Think of a mercy petition as an emergency brake in a train (the justice system). The brake is there to prevent a catastrophic crash (unjust punishment). However, if the driver (the executive) takes too long to decide whether to use the brake, the delay itself becomes a form of punishment and defeats the purpose of the safety mechanism.

Critical Policy Appraisal

Analytical Lens: UPSC Focus (Mains & Prelims)

Conceptual Basis

The legal foundation for executive clemency rests on Article 72 (President’s Power) and Article 161 (Governor’s Power) of the Indian Constitution. The principles are further shaped by landmark Supreme Court judgments, most notably Maru Ram v. Union of India (1980), which established that the power is exercised on ministerial advice, and Epuru Sudhakar v. Govt. of A.P. (2006), which affirmed the power of judicial review.

UPSC Integration: Connecting the Dots

1. Indian Polity (GS Paper II): This topic is directly linked to the Executive (President, Governor, Council of Ministers), the Judiciary (judicial review), and Fundamental Rights (Article 21). It is a classic example of the checks and balances in the Indian constitutional framework.
2. Ethics, Integrity, and Aptitude (GS Paper IV): The concept of pardoning power invokes ethical questions of justice, mercy, compassion, and fairness. A case study on a controversial pardon could be used to test a candidate’s ethical reasoning.
3. Modern Indian History (GS Paper I): The evolution of this power can be traced from the colonial era, providing a historical perspective on constitutional development.

Future Impact & Policy Relevance

The future of pardoning power in India is headed towards greater accountability and transparency. The Supreme Court’s increasing intolerance for “pocket vetoes” and indefinite delays is a clear indicator. We can expect a push for either a constitutional amendment or a statutory framework that mandates a time-bound disposal of mercy petitions. This shift is crucial for upholding the rule of law and ensuring that the power of mercy does not become a tool of arbitrary governance, strengthening the convict’s right to a speedy conclusion of all legal proceedings.

Prelims Practice Question (MCQ)

Which of the following statements accurately distinguishes the pardoning power of the President from that of the Governor?

a) The Governor can pardon a death sentence, but the President cannot. b) The President’s power extends to court-martial sentences, whereas the Governor’s does not. c) Both the President and the Governor must exercise their power independently of the Council of Ministers. d) The Governor can grant a pardon in cases of offenses against Union laws.

Answer: (b) Explanation: The President’s power under Article 72 is wider than the Governor’s under Article 161. Only the President has the power to pardon sentences handed down by a court-martial. The President can also pardon a death sentence, while the Governor cannot (they can only suspend, remit, or commute it). Both are bound by the advice of the Council of Ministers. The Governor’s power is limited to offenses against state laws, not Union laws.

Mains Sample Question

The pardoning power of the Executive, while a necessary safeguard against judicial error, has been fraught with controversies related to inordinate delays and perceived political considerations. In light of recent judicial pronouncements, critically analyze the need for reforming the process of granting clemency in India. (15 Marks, 250 Words)

Mind Map Outline (Revision Structure)

• Pardoning Power in India
  • Constitutional Basis
    • Article 72: President’s Power
      • Scope: Union Laws, Court-Martial, Death Sentence
    • Article 161: Governor’s Power
      • Scope: State Laws
      • Limitation: Cannot pardon death sentences or court-martial verdicts
  • Types of Clemency (The 5 Powers)
    • Pardon (Complete Absolution)
    • Commute (Lighter Form)
    • Remission (Reduces Term, Not Character)
    • Respite (Lesser Sentence for Special Reason)
    • Reprieve (Temporary Stay of Execution)
  • Judicial Scrutiny & Landmark Cases
    • Maru Ram v. Union of India (1980): Not a discretionary power; based on ministerial advice.
    • Epuru Sudhakar v. Govt. of A.P. (2006): Pardons are subject to judicial review on grounds of arbitrariness.
    • Shatrughan Chauhan v. Union of India (2014): Inordinate delay in deciding mercy petitions is a ground for commuting a death sentence.
    • Recent SC Stance (2024-2025): Strong observations against indefinite delays by constitutional authorities, pushing for timeliness.
  • Critical Policy Appraisal
    • Challenges
      • Potential for political misuse
      • Lack of transparency in decision-making
      • Inordinate delays violating Article 21
    • Way Forward
      • Establish clear, transparent guidelines
      • Mandate a fixed, reasonable timeframe for disposal
      • Strengthen judicial review to ensure fairness