Article 72

Article 72 of the Constitution of India vests in the President the power to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute sentences in certain cases. This provision serves as a vital component of India’s criminal justice system, acting as a constitutional safeguard that balances the rigidity of law with the principles of mercy, equity, and justice.

Constitutional Context and Purpose

The power of pardon under Article 72 reflects the principle that justice should be tempered with compassion. Rooted in the concept of “royal prerogative of mercy”, which historically belonged to sovereigns, this authority was democratically transferred to the constitutional head of the Indian Republic — the President. The objective is to prevent potential miscarriages of justice, correct judicial errors, and allow consideration of humanitarian or public policy grounds beyond legal adjudication.
This power is not judicial but executive in nature, exercised by the President based on the aid and advice of the Council of Ministers, as mandated by Article 74. Thus, while vested in the President, it represents the collective judgment of the Union Government.

Scope and Application of Article 72

Article 72(1) specifies three circumstances under which the President may exercise this power:

1. Court Martial Cases (Sub-clause a):The President may grant pardons, reprieves, respites, or remissions of punishment, or suspend, remit, or commute the sentence of any person convicted by a Court Martial. This ensures a system of appeal beyond military justice, enabling civilian oversight in extraordinary cases.
2. Union Law Offences (Sub-clause b):The President’s powers extend to all offences against laws to which the executive power of the Union extends. This includes crimes under central legislation such as customs, narcotics, or foreign exchange laws.
3. Death Sentence Cases (Sub-clause c):The President may exercise these powers in cases where a death sentence has been awarded, irrespective of whether the sentence was passed under central or state law. This is perhaps the most critical aspect of Article 72, providing a final layer of mercy before the irreversible execution of capital punishment.

Clause (2): Limitation in Armed Forces Cases

Article 72(2) clarifies that the President’s power does not affect the authority vested in officers of the Armed Forces to suspend, remit, or commute sentences under military law. This ensures that military discipline and internal justice systems function autonomously, subject only to the limits prescribed by law.

Forms of Executive Clemency

The President’s clemency powers encompass several forms of relief:

• Pardon: Complete forgiveness of the offence and removal of all legal penalties and disqualifications.
• Reprieve: Temporary postponement of the execution of a sentence, particularly in death penalty cases.
• Respite: Awarding of a lesser punishment due to special circumstances, such as pregnancy or illness.
• Remission: Reduction of the quantum or duration of the sentence without changing its nature.
• Commutation: Substitution of one form of punishment with a lighter one, such as commuting a death sentence to life imprisonment.

These forms collectively reflect the President’s role as the ultimate constitutional protector of justice and fairness.

Judicial Interpretation and Landmark Judgments

Over the years, the Supreme Court of India has clarified the scope and limits of Article 72 through various judgments:

• Maru Ram v. Union of India (1980): The Court held that the President’s power is not absolute and must be exercised on the advice of the Council of Ministers. Judicial review is permissible to prevent arbitrary or mala fide exercise.
• Kehar Singh v. Union of India (1989): The Court affirmed that while the President may consider the merits of a case, the judiciary cannot direct how the clemency power should be exercised. However, the President may review evidence afresh when deciding mercy petitions.
• Epuru Sudhakar v. Government of Andhra Pradesh (2006): The Supreme Court reiterated that the clemency power is subject to judicial review if exercised in bad faith, on irrelevant grounds, or in violation of constitutional principles.
• Shatrughan Chauhan v. Union of India (2014): The Court emphasised the importance of humane considerations in death penalty cases, including mental illness, delay in execution, or procedural lapses, as grounds for commuting death sentences.

These cases collectively establish that the President’s clemency power, though wide, is not unfettered and remains subject to constitutional discipline and judicial scrutiny.

Significance and Objectives of Article 72

Article 72 serves several important constitutional and humanitarian purposes:

• Correcting Judicial Errors: Allows rectification of wrongful convictions or excessive punishments not addressed by the judiciary.
• Promoting Equity and Compassion: Recognises that justice is not only legal but moral, permitting mercy where strict legality might cause hardship.
• Ensuring Constitutional Supremacy: Upholds the principle that executive authority can intervene in exceptional circumstances to preserve fairness.
• Maintaining Public Order: Enables clemency as a political or reconciliatory tool, particularly in sensitive cases affecting national integration or security.

Relationship with Article 161

While Article 72 grants pardon powers to the President, Article 161 extends similar powers to the Governor at the state level. The distinction lies in the scope of authority:

• The President’s powers apply to offences under Union laws and death sentences, including those tried under state laws.
• The Governor’s powers apply only to offences under state laws.

This division ensures federal balance and delineates responsibilities between Union and State executives.

Practical Application and Procedure

In practice, mercy petitions are processed through the Ministry of Home Affairs, which evaluates each case in consultation with relevant authorities before making recommendations to the President. The decision is taken based on factors such as:

• Nature and gravity of the offence.
• Conduct and character of the convict.
• Health or humanitarian grounds.
• Considerations of public interest and justice.

The President’s decision—whether to grant or reject clemency—is final, though subject to limited judicial review on grounds of arbitrariness, discrimination, or mala fide intent.

Limitations on the Exercise of Clemency

The President’s powers under Article 72, though broad, are subject to constitutional and moral limitations:

• They cannot override the authority of military courts beyond what is explicitly permitted.
• The power must be exercised in good faith, with due consideration of all relevant materials.
• Clemency cannot be granted for political or extraneous reasons, as it would violate the rule of law.
• The President cannot act independently of ministerial advice under Article 74(1).

Contemporary Relevance and Humanitarian Role

In recent years, the exercise of presidential pardon powers has often been the subject of public and judicial scrutiny, particularly in cases involving capital punishment, terrorism, or political sensitivity. Nonetheless, Article 72 remains a vital instrument for upholding the humanitarian and moral dimensions of justice. It allows the State to show compassion where law alone may appear inflexible.