08 Jul The Pardoning Power under Articles 72 & 161 of the Indian Constitution: Scope, Judicial Review and Constitutional Limits
The Pardoning Power (Articles 72 & 161)
The Constitution entrusts the Executive with a clemency (pardon) power. Article 72 empowers the President to grant “pardons, reprieves, respites or remissions of punishment” and to “suspend, remit or commute” sentences in certain cases. Specifically, Article 72 covers (a) punishments imposed by court-martial, (b) offences under Union law, and (c) death sentences. Article 161 vests a similar power in every State Governor for offences under State law. (Notably, while Article 72 expressly includes death‐penalty cases, Article 161 does not – Governors may only commute but not pardon death sentences, a right preserved by Article 72(3)). These provisions were designed as “safety valves” of mercy in the criminal justice system. Pardons correct miscarriages of justice or temper excessive punishment. As the Supreme Court has explained, clemency is an “act of grace and humanity in proper cases,” reflecting the idea that even a perfect legal system needs the “attribute of deity whose judgments are always tempered with mercy”. Without such a power, the law’s “high tide of human rights” might be imperfect.
Scope of the Power
The scope of Article 72/161 is very broad in mitigation but strictly one‐sided: only to lessen or end penalties. The courts have emphasized that this power can only reduce a sentence, never increase it. In Kuljit Singh v. Lt. Governor of Delhi (1982), the Supreme Court held that Executive clemency “can be used only for the purpose of reducing the sentence, not for enhancing it”. In practice, a President or Governor may commute a death sentence to life imprisonment or remit part of a term, but may not impose harsher punishment than what the courts awarded.
Constitutionally, Article 72/161 powers are “absolute and unfettered” as regards statutory limits. In Maru Ram v. Union of India (1980), Justice Fazal Ali observed that these pardon powers are not subject to any legislative restraints – no statute or prison rule can curtail the President’s or Governor’s authority. At the same time, the Court cautioned that “higher the power, the more cautious” its exercise should be. In other words, the very fact that clemency is vested in the highest Executive implies it must be exercised judiciously. For example, the Court explicitly warned that considerations like religion, caste, colour or political loyalty are totally irrelevant to the pardon decision. The Executive must therefore act responsibly: the President ordinarily acts on the advice of the Union Council of Ministers (Article 74) and a Governor on the state Cabinet’s advice. Maru Ram reaffirmed that clemency is not a personal whim – it must be exercised “not on [the President’s] own judgment but in accordance with the aid and advice of [Ministers]”. Kehar Singh v. Union of India (1989) likewise stressed that the pardoning power is guided by objective criteria and may not serve personal or political ends.
Purpose and Justification
Judicially and philosophically, the clemency power exists to temper the rigor of law with mercy. The courts have cited American and English authorities for its purpose: e.g. Chief Justice Taft’s dictum that “executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law”. Similarly, Corpus Juris Secundum (an American legal encyclopedia) states that the power is “founded on considerations of the public good,” exercised when the public welfare will be as well served by leniency as by full execution of the sentence. Executive clemency can “correct injustice,” such as when new facts emerge, or mitigate disproportionate punishment. As the Supreme Court put it, absent a pardon power a country would be “most imperfect and deficient in its political morality”. Thus, the Framers regarded Articles 72/161 as necessary “human touch” in sentencing – a final step of grace when justice so requires.
Judicial Review: Absolute or Limited?
From the earliest cases, the Supreme Court has held that the pardoning power, while broad, is not beyond judicial scrutiny. No executive power is immune from the rule of law. Maru Ram was the first case to stress that even constitutional powers must not be arbitrary or mala fide. It held that Articles 72/161 cannot be statutorily constrained and that they must be exercised on ministerial advice, but also that the Executive cannot act capriciously in granting clemency. In Kehar Singh v. Union of India (1989), the Court reaffirmed these principles, flatly rejecting the Attorney General’s argument that clemency is non-justiciable. Kehar Singh confirmed that the President’s mercy decisions are subject to judicial review “on the facts and circumstances of each case”. It emphasized that the President cannot treat Article 72 as an unfettered political tool and ruled out misuse (e.g. for “political consideration”).
The leading modern authority, Swaran Singh v. State of U.P. (1998), finally squarely held that clemency decisions by Governors (and by extension the President) are reviewable in limited circumstances. There a Governor had remitted a life sentence without knowing critical facts (an earlier petition had been rejected, adverse jail reports, pending prosecutions, etc.). The Supreme Court quashed the remission order as “manifestly arbitrary”, stressing that courts may intervene when clemency is exercised arbitrarily, mala fides, or in disregard of constitutional standards. Importantly, Swaran Singh clarified that the Court would not substitute its own view on mercy; it “would not enter the merits of the clemency request” but could nullify an order passed without considering relevant information or based on misrepresentation. In short, the judiciary enforces procedural fairness and legitimacy in clemency, without encroaching on the Executive’s mercy function.
Epuru Sudhakar v. Govt. of A.P. (2006) reiterated this “limited review” approach. The Court noted that clemency is not a mere “act of grace”; it must meet constitutional standards. It explicitly listed permissible grounds for review: for example, that a pardon order was issued “without application of mind,” or was mala fide, or relied on extraneous considerations, or omitted relevant material, or was arbitrary. These align with Swaran Singh’s holding: reviewability for arbitrariness or unfairness, not for substance of the mercy plea. Thus, while the Executive’s clemency decision is final on merits, courts safeguard against abuse (e.g. bias, fraud, failure to hear significant facts).
In summary, Indian case law holds that the President’s and Governors’ mercy powers are subject to constitutional challenge on limited grounds. Courts will not sit as a “court of mercy” but will ensure the process is bona fide and reasonable. Any excess of power, lack of mind, or procedural unfairness invites judicial scrutiny.
Grounds and Principles of Review
The grounds of review are narrow and well‐defined. The courts have consistently said they will not examine the wisdom or justice of granting mercy, but will review the legality of the decision. Key points include:
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Application of Mind / Relevance: The pardoning authority must consider the petition on relevant facts. A decision based on “extraneous or irrelevant considerations” or with no conscious application of mind is void. For instance, clemency cannot be granted or denied on the basis of a convict’s caste, religion, political loyalty or other impermissible factors.
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Mala Fide / Arbitrariness: If the clemency power is exercised with an ulterior motive or capriciously, courts will intervene. In Swaran Singh, the Governor’s decision was nullified because he was deliberately kept ignorant of material facts – a kind of arbitrariness that undermined fairness.
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Procedural Fairness: The process of considering a mercy petition must be fair. Courts have required that petitions be disposed of without undue delay and that all relevant information (trial records, victim impact, prison conduct) be placed before the authority. Failure to do so can amount to denial of a fair exercise. However, the Constitution does not prescribe a fixed time‐limit; remedies arise only if delay causes concrete prejudice.
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Constitutional Limits: Any decision in clear violation of constitutional principles (e.g. denying natural justice or infringing fundamental rights) is reviewable. But the threshold is high: courts will not require reasons in every case, nor re-weigh evidence; they only ensure basic legality.
These principles are drawn from the above cases. For example, Epuru Sudhakar enumerated specific grounds (lack of mind, mala fide, irrelevant factors, suppressed material, arbitrariness). Kehar Singh similarly warned against “political considerations” or casteism in pardons. In practice, courts look at the inputs to the clemency decision (reports, recommendations) and the process (was the Council’s advice followed?) to see if any judicially cognizable error occurred.
Case Law Summary
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Maru Ram v. Union of India (1980): A Constitution Bench held that Articles 72/161 powers cannot be statutorily limited. It affirmed that President/Governors act on the Council’s advice and must exercise clemency per “sound legal principles” (citing Krishna Iyer J’s opinion). While finding the challenged statute valid, Maru Ram underscored that “all public power… shall never be exercisable arbitrarily or mala fide”. The decision laid the foundations for limited review of mercy (though it dismissed the petition on other grounds).
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Kehar Singh v. Union of India (1989): This case concerned the Rajiv Gandhi assassination convicts. The Supreme Court reaffirmed Maru Ram’s doctrines. It stressed that the President is not a “rubber stamp”: pardons must be on objective grounds. Kehar held that even after all judicial remedies are exhausted, a convict has no vested right to mercy, but insisted the Executive cannot ignore constitutional norms. The Court explicitly rejected the view that clemency orders were immune from judicial review. It also ruled that a convict has no right to a personal audience with the President.
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Kuljit Singh (alias Ranga) v. Lt. Governor of Delhi (1982): In this case a death sentence was upheld against the clemency petitioner. Chief Justice Chandrachud’s judgment (and Justice Fazal Ali’s concurring note) fleshed out the nature of mercy power. They noted that pardoning is meant to mitigate “undue harshness or evident mistake”, and decisions must be made case-by-case. They refused to lay down rigid guidelines for mercy, observing “we do not see what useful purpose” would be served by any “severe, judicially evolved constraints” on this “wholesome power”. They reiterated that Art.72 power can only reduce punishment and never make it harsher.
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Swaran Singh v. State of U.P. (1998): A three-judge Constitution Bench held that clemency orders (here a Governor’s remission) can be judicially reviewed on limited grounds. The Court quashed the remission in that case because the Governor was deliberately kept unaware of adverse facts – making the decision unlawful. Swaran Singh emphatically stated that “we cannot accept the rigid contention that this Court has no power to review executive orders under Articles 72 and 161”. It endorsed Maru Ram’s and Kehar’s view that clemency power is subject to the rule of law. Crucially, the Court kept its review narrow: it would not itself grant mercy, but would invalidate orders tainted by illegality or malice.
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Epuru Sudhakar v. Govt. of A.P. (2006): The Supreme Court reiterated that clemency is no privilege, but a constitutional duty open to judicial oversight. It expressly held that an order under Art.72/161 can be challenged for lack of mind, mala fide, irrelevant considerations, suppression of materials, or arbitrariness. This case is often cited for enumerating the specific “pain points” where courts will intervene. Epuru Sudhakar also quoted Holmes and legal treatises on the purpose of pardon (public good, justice, mercy).
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Other Cases: Subsequent cases have consistently applied these principles. For example, Chinnappa Pillai v. State of Kerala (2005) quashed a Governor’s commutation for arbitrariness. In Kirpal Pal v. Union of India (2018), the Court held that even swifter disposal of mercy petitions (within 3 months) is desirable, implicitly underlining that unreasonable delay or default may be objectionable (though delays are not independently grounds unless shown to prejudice). In death-penalty jurisprudence (e.g. Dhananjoy Chatterjee v. State of W.B., 1994), the emphasis is on the finality of processes: once all appeals are done, a mercy petition is the last chance, but the President’s action was treated as final in that case.
Conclusion
In sum, the President’s and Governors’ pardon powers under Articles 72 and 161 are extremely powerful but not absolute. They are unfettered by ordinary law and serve a critical mercy function, yet they operate within constitutional bounds. As the Supreme Court has made clear, clemency decisions can be challenged in court only on narrow constitutional grounds – chiefly to ensure that the power was exercised in good faith, with due application of mind, and without illegality or arbitrariness. This balance preserves the Executive’s plenary discretion to show mercy, while upholding the rule of law and fairness in the “last resort” of justice.
Sources: Indian Constitution (Arts. 72, 161); Maru Ram (1980); Kehar Singh (1989); Kuljit Singh alias Ranga (1982); Swaran Singh (1998); Epuru Sudhakar (2006) (with citation of relevant passages). Each case is cited as numbered above.
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