Pardoning Power of President

The power to pardon a convict is authority granted to the President to provide relief. This can include power of pardon, reprieve, respite, and remission for all sentences. The President's powers are granted under Article 72 of the Indian Constitution, while the Governor's powers are granted under Article 161. It is considered to be an 'act of grace' by releasing the person from punishment. It is usually done in light of good conduct of the convict or reform in person.

Historically, the pardoning power emerged from the concept of royal prerogative, where monarchs held absolute power and could grant mercy based on their own discretion. Pardon offered a way to avoid undue harshness in exceptional cases, balancing the demands of justice with compassion and a chance for redemption. With the rise of democratic systems, the pardoning power became subject to constitutional checks and balances.

The President's powers to pardon a convict includes the following -

1. Pardon: Full absolution of the convicted person.
2. Reprieve: Temporary suspension of the sentence.
3. Respite: Lessening the term of the sentence.
4. Remission: Lessening the amount of the sentence.
5. Commutation: Changing the type of punishment.

• Scope: The President can, under Article 72, exercise the power of pardon, reprieve, respite, and remission for all sentences under the jurisdiction of the Union, including Court Martial and death penalty cases.
• On Advice of Council of Ministers: Pardoning power can only be exercised on the advice of the Council of Ministers and this advice is binding. The President cannot exercise discretion, but must rely on the elected representatives. At most, President can ask the Ministers to reconsider their advice, however is bound with whatever decision the Council of Ministers make.
• Limitation: The power of the President does not affect the power of the Armed Forces to suspend, remit, or commute sentences. It also does not affect the power of the Governor to suspend, remit or commute a death penalty.
• Not a Right: The power of pardon is considered an act of grace, not claimed as a right
• Conviction Not Erased: The convict only gets respite from serving the sentence, a pardon does not erase conviction. This means he is still a criminal in the eyes of law.
• President's Powers of Pardon Wider than Governor: Governor does not have the power to Pardon a death penalty, however Governor can suspend, remit or commute the sentence of death under Article 161. The governor can also not suspend Court Martial sentences, that power lies only with the President.
• No Guidelines: Supreme Court has observed in the Keher Singh Case that the court does not need to provide specific guidelines for the exercise of this power of pardon as it is of the "widest amplitude."
• No Reason: The President is not obligated to explain or give reason for their decision.
• No Judicial Review: Supreme Court said that this is an executive power not subject to judicial review, however a limited check of the following is done-
  • Epuru Sudhakar Case: Pardoning power under Article 72 & 161 cannot exercised be arbitrarily and should not be influenced by political reasons, caste, religious considerations, or violate the Constitution.
  • Swaran Singh Case: Court can interfere only if there is no application of mind, mala fide intentions, extraneous/irrelevant considerations, or an arbitrary order.

• Filing: A mercy petition must be filed with the President under Article 72.
• Ministry Review: The petition is sent to the Ministry of Home Affairs for review.
• State Consultation: The Ministry consults with the relevant State Government.
• Recommendation: The Home Ministry makes recommendations and sends the petition back to the President.

• No Oral Hearing: The convict has no right to an oral hearing.
• No Repeat Petitions: Rejected mercy petitions cannot be re-filed for a stay.

The power to pardon is an executive power of the President which is exercised on advice of the Council of Ministers. Delays in processing mercy petitions have been criticized by the Supreme Court. There is no time period prescribed in Article 72 for processing a Mercy Petition. This leads to immense stress for the convict. In light of this, the Supreme Court has even commuted death sentences due to inordinate delay in deciding mercy petition. It is important that decision on Mercy Petition is taken in a time bound manner to ensure efficiency and reduce mental agony for the prisoner.