Article 72 of the Constitution of India deals with the pardoning power of the President of India. It empowers the President to grant pardons, reprieves, respites or remissions of punishment, and in certain cases to suspend, remit or commute a sentence.
- Meaning of Article 72
- Cases in Which Article 72 Applies
- Types of Clemency
- Suspension, Remission and Commutation
- Article 72 and Death Penalty
- Is the President’s Power Absolute?
- Judicial Review of Pardoning Power
- Article 72 and Article 161
- Can the Governor Pardon a Death Sentence?
- Court Martial and Article 72
- Article 72 and Judicial Sentences
- Article 72 and Article 74
- Article 72 and Article 73
- Article 72 and Article 161
- Why Is the Pardoning Power Necessary?
- Article 72 at a Glance
- Article 72 and Article 161: Key Difference
- Common Confusions
- Quick Revision
- Conclusion
The power under Article 72 is an important constitutional safeguard within the criminal justice system. It allows the President to intervene in specified cases after considering the circumstances of the case and the applicable constitutional and legal principles.
Meaning of Article 72
Article 72 gives the President the power to exercise clemency in certain categories of cases.
The President may grant:
- Pardon
- Reprieve
- Respite
- Remission
The President may also:
- Suspend a sentence;
- Remit a sentence; or
- Commute a sentence.
However, the power is not available in every criminal case. Article 72 specifies the circumstances in which it may be exercised.
Cases in Which Article 72 Applies
The President may exercise the power under Article 72 in three broad situations:
1. Court Martial Cases
The President may grant clemency in cases where the sentence has been imposed by a Court Martial.
This is an important distinction because the Governor’s pardoning power under Article 161 does not extend to Court Martial sentences.
2. Offences Relating to Matters Within the Union Executive Power
The President may exercise the power in respect of offences against laws relating to matters to which the executive power of the Union extends.
The scope is therefore connected with the distribution of executive power between the Union and the States.
3. Death Sentences
The President may grant clemency in all cases where the sentence is a sentence of death.
This includes the power to grant relief even where the death sentence has been imposed by a court under State law.
Types of Clemency
Article 72 uses several distinct terms. Understanding their differences is important.
Pardon
A pardon completely removes both the sentence and the conviction in the sense that it releases the person from the punishment and its legal consequences.
It provides the broadest form of clemency.
Reprieve
A reprieve means a temporary suspension of the execution of a sentence, particularly a death sentence.
It provides time for further consideration of the case.
Respite
A respite means awarding a lesser sentence because of special circumstances.
For example, considerations such as the physical condition of the offender may be relevant.
Remission
Remission reduces the quantum or duration of the sentence without changing the nature of the sentence.
For example, a sentence of imprisonment may be reduced from a longer period to a shorter period.
Commutation
Commutation means substituting one form of punishment with a less severe form of punishment.
For example, a death sentence may be commuted to imprisonment for life.
Suspension, Remission and Commutation
Article 72 expressly allows the President to suspend, remit or commute sentences.
These powers allow the President to provide relief without necessarily granting a complete pardon.
The distinction between these forms of clemency can be understood as follows:
| Term | Meaning |
|---|---|
| Pardon | Completely forgives the punishment and removes its legal consequences |
| Reprieve | Temporary postponement of execution of a sentence |
| Respite | Lesser sentence due to special circumstances |
| Remission | Reduction in the duration or quantum of sentence without changing its character |
| Commutation | Substitution of a less severe form of punishment |
Article 72 and Death Penalty
One of the most significant aspects of Article 72 is the President’s power to grant clemency in death sentence cases.
The President may:
- Pardon a death sentence;
- Commute it to another punishment;
- Remit or otherwise provide relief within the scope of the constitutional power.
The existence of Article 72 provides a constitutional avenue for seeking clemency even after the judicial process has reached its conclusion, subject to the applicable law and constitutional limitations.
Is the President’s Power Absolute?
No.
The President does not ordinarily exercise Article 72 personally and independently.
Under Article 74, the President acts on the aid and advice of the Council of Ministers.
Therefore, the pardoning power is a constitutional power exercised by the President within the parliamentary system of government.
Judicial Review of Pardoning Power
The exercise of the pardoning power is subject to limited judicial review.
The courts generally do not sit as an appellate authority over the merits of the President’s decision.
However, constitutional courts can examine the decision in appropriate cases where there are recognised grounds for judicial intervention, such as:
- Mala fide exercise of power;
- Consideration of wholly irrelevant material;
- Failure to consider relevant material;
- Arbitrariness;
- Non-application of mind.
Therefore, Article 72 does not place the President’s decision completely beyond constitutional scrutiny.
Article 72 and Article 161
Article 72 must be distinguished from Article 161, which gives the Governor a similar pardoning power.
| President – Article 72 | Governor – Article 161 |
|---|---|
| Power exercised by President | Power exercised by Governor |
| Includes Court Martial cases | Does not extend to Court Martial cases |
| Applies to death sentences | Governor can suspend, remit or commute death sentence, but cannot pardon a death sentence |
| Applies to matters within Union executive power | Applies to matters within State executive power |
The President’s power is therefore broader in certain respects.
Can the Governor Pardon a Death Sentence?
The Governor has power under Article 161 to suspend, remit or commute a death sentence.
However, the Governor does not have the power to pardon a death sentence.
The President’s power under Article 72 extends to granting a pardon in death sentence cases.
Court Martial and Article 72
Article 72 expressly gives the President the power to grant clemency in Court Martial cases.
This is an important distinction between Articles 72 and 161.
The Governor’s constitutional pardoning power does not extend to sentences imposed by Court Martial.
Article 72 and Judicial Sentences
The power under Article 72 can operate in relation to sentences imposed through the judicial process, subject to the constitutional conditions governing the President’s power.
It is therefore not an ordinary judicial appeal.
The President’s clemency power is a constitutional mechanism separate from the appellate jurisdiction of courts.
Article 72 and Article 74
Article 74 provides for the Council of Ministers to aid and advise the President.
The President exercises the Article 72 power on the basis of the constitutional system of aid and advice.
Thus:
Article 72 → Pardoning power
Article 74 → Aid and advice of Council of Ministers
Article 72 and Article 73
Article 73 deals with the extent of the executive power of the Union.
Article 72 refers to offences relating to matters to which the executive power of the Union extends.
Therefore, Articles 72 and 73 are conceptually connected.
Article 72 and Article 161
The two provisions form the principal constitutional framework for executive clemency in India.
- Article 72 → President
- Article 161 → Governor
Both powers are subject to constitutional limitations and operate within India’s parliamentary system.
Why Is the Pardoning Power Necessary?
The pardoning power serves several purposes.
Humanitarian Considerations
Exceptional circumstances may justify reducing or removing punishment.
Correcting Possible Errors
Clemency can provide an additional safeguard where circumstances warrant reconsideration after the judicial process.
Public Interest
The power may take into account broader considerations that are not necessarily addressed through ordinary judicial proceedings.
Constitutional Flexibility
The power provides flexibility within the criminal justice system while maintaining constitutional safeguards.
Article 72 at a Glance
| Point | Constitutional Position |
|---|---|
| Article | Article 72 |
| Subject | President’s pardoning power |
| Authority | President of India |
| Court Martial cases | Yes |
| Death sentences | Yes |
| Union executive matters | Yes |
| Pardon | Yes |
| Reprieve | Yes |
| Respite | Yes |
| Remission | Yes |
| Commutation | Yes |
| Aid and advice | Article 74 |
| Governor’s corresponding power | Article 161 |
| Judicial review | Limited constitutional review |
Article 72 and Article 161: Key Difference
The most important difference is the scope of the two powers.
The President can exercise Article 72 in:
Court Martial cases + Union executive matters + all death sentence cases
The Governor’s Article 161 power applies to matters within the State’s executive power and has a different scope regarding death sentences and Court Martial cases.
Common Confusions
Can the President Pardon a Death Sentence?
Yes.
Article 72 specifically empowers the President to grant clemency in cases where the sentence is a sentence of death.
Can the President Pardon a Court Martial Sentence?
Yes.
Article 72 expressly covers Court Martial cases.
Can the Governor Pardon a Court Martial Sentence?
No.
The Governor’s power under Article 161 does not extend to Court Martial sentences.
Is a Pardon the Same as Remission?
No.
A pardon is broader, while remission reduces the sentence without changing its character.
Is Commutation the Same as Remission?
No.
Remission reduces the duration or quantum of punishment without changing its character.
Commutation substitutes one form of punishment for a less severe form.
Can Courts Review the President’s Pardoning Decision?
Yes, but only within limited constitutional grounds. Courts do not ordinarily substitute their own decision for that of the President.
Does the President Exercise the Power Completely Independently?
No.
Under Article 74, the President acts on the aid and advice of the Council of Ministers.
Quick Revision
- Article 72 → President’s power to grant pardons, etc.
- President may grant pardon, reprieve, respite or remission.
- President may also suspend, remit or commute sentences.
- Applies to Court Martial cases.
- Applies to offences concerning matters within the Union executive power.
- Applies to all death sentences.
- President acts on the aid and advice of the Council of Ministers under Article 74.
- Exercise of the power is subject to limited judicial review.
- Article 72 → President
- Article 161 → Governor
- President can pardon a death sentence.
- Governor cannot pardon a death sentence, though the Governor has powers to suspend, remit or commute it under Article 161.
- President’s power extends to Court Martial cases.
Conclusion
Article 72 gives the President of India the constitutional power of clemency in specified cases. It includes the power to grant pardons, reprieves, respites and remissions and to suspend, remit or commute sentences.
The provision is particularly significant because it covers Court Martial cases, offences relating to matters within the Union executive power and all cases involving death sentences. The power is exercised within India’s parliamentary system on the aid and advice of the Council of Ministers and remains subject to limited judicial review.
The key point to remember is:
Article 72 → The President can grant pardon, reprieve, respite or remission, and can suspend, remit or commute sentences in Court Martial cases, Union executive matters and all cases involving death sentences.
