Article 72 of the Indian Constitution vests in the President of India the power to grant pardons and to suspend, remit, or commute sentences in certain cases. This power is an executive power, distinct from the judicial power of the courts, and serves as a safety valve against judicial errors or the harshness of the law.
This provision embodies the principle of clemency, allowing for a humanitarian consideration of the case, especially in circumstances where strict adherence to the judicial verdict might lead to injustice. It is a vital aspect of the constitutional framework, providing a last resort for individuals seeking relief from conviction or sentence.
Original Text
72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.— (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence— (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
Detailed Explanation
Article 72 grants the President specific powers regarding the punishment or sentence of any person convicted of an offence. This power is not an unlimited personal discretion but is exercised by the President on the aid and advice of the Council of Ministers, as established by various Supreme Court judgments. The article specifies the types of cases where this power can be exercised:
- Court Martial Cases: The President can use these powers for punishments or sentences handed down by military courts. This covers all offences tried under military law.
- Union Law Offences: This applies to cases where the punishment or sentence is for an offence against a law concerning a matter over which the executive power of the Union government extends. Essentially, this covers violations of central laws.
- Death Sentences: Regardless of whether the sentence is for an offence against a Union law or a State law (provided the state law prescribes death sentence), the President has the power to intervene in all cases where a death sentence has been awarded.
The article outlines several forms of clemency the President can grant:
- Pardon: This completely absolves the offender from all sentences and punishments and disqualifications. It places the convicted person in the same position as if they had never been convicted.
- Reprieve: This is a temporary suspension of the sentence, particularly a death sentence, allowing the convicted person time to seek a pardon or commutation from the President.
- Respite: This denotes awarding a lesser sentence than the one originally awarded due to special facts, such as the physical disability of the offender or the pregnancy of a woman offender.
- Remission: This means reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for 10 years may be remitted to rigorous imprisonment for 5 years.
- Commutation: This involves substituting one form of punishment with a lighter form. For example, a death sentence may be commuted to life imprisonment, or rigorous imprisonment may be commuted to simple imprisonment.
Clause (2) clarifies that the President’s power over Court Martial sentences does not affect any power conferred by law on military officers to suspend, remit, or commute sentences passed by a Court Martial. This ensures that the military chain of command retains certain disciplinary powers.
Clause (3) notes that the President’s power concerning death sentences does not affect the power of a State Governor to suspend, remit, or commute a death sentence under any law in force. This implies a potential overlap or concurrent power with respect to suspending, remitting, or commuting a death sentence, although the power to pardon a death sentence rests exclusively with the President under Article 72(1)(c).
Detailed Notes
- Source of Power: President of India (Executive Head of the Union).
- Nature of Power: Executive power, exercised on the aid and advice of the Council of Ministers.
- Cases Covered:
- Punishment/sentence by Court Martial.
- Punishment/sentence for offence against Union laws (where Union executive power extends).
- Any sentence of death (regardless of whether it is for a Union or State law offence).
- Types of Clemency:
- Pardon: Absolves from sentence, punishment, and disqualifications.
- Reprieve: Temporary stay of execution (especially death sentence).
- Respite: Lesser sentence due to special circumstances (e.g., pregnancy, disability).
- Remission: Reducing sentence period without changing character.
- Commutation: Substituting original sentence with a lighter one.
- Court Martial: President’s power does not override specific statutory powers of military officers regarding suspension, remission, or commutation of court martial sentences.
- Death Sentence: President has the exclusive power to pardon a death sentence.
- Death Sentence (Governor’s Power): Article 72(3) indicates that the Governor under Article 161 may have power to suspend, remit, or commute a death sentence under certain laws, but not to pardon it.
- Comparison with Governor (Article 161):
- Governor cannot pardon death sentences (only suspend, remit, or commute, if permitted by law). President can pardon, suspend, remit, or commute death sentences.
- Governor’s power applies to offences against state laws. President’s power applies to offences against Union laws and Court Martial sentences.
- Governor has no power over Court Martial sentences. President has power over Court Martial sentences.
- Judicial Review: The President’s decision under Article 72 is generally not subject to judicial review. However, the Supreme Court has held that the exercise of this power can be reviewed on limited grounds, such as if it is found to be arbitrary, irrational, mala fide, based on irrelevant considerations, or if the President has failed to apply his mind to the case.
Additional Comments
- The power under Article 72 is a sovereign power vested in the head of the executive to correct possible judicial errors or excesses.
- It acts as the final safety net in the justice delivery system.
- The power is to be exercised on the advice of the Union Cabinet, emphasizing its character as a constitutional power, not a personal one.
- Delay in deciding mercy petitions, especially in death sentence cases, has been held by the Supreme Court to be a ground for commutation of the death sentence to life imprisonment in certain circumstances.
- The President is not bound to hear the petitioner orally before rejecting a mercy petition.
- The scope of judicial review is narrow, primarily focused on procedural irregularities or clear constitutional impropriety rather than the merits of the decision itself.
Summary
Article 72 grants the President of India the authority to mitigate punishments and sentences imposed by courts, including those by court martial, for offences against Union laws, and importantly, in all cases involving a death sentence. This power encompasses granting pardons, temporarily suspending sentences (reprieve), reducing sentences based on special circumstances (respite), reducing the duration of a sentence (remission), or changing the form of punishment to a lighter one (commutation). The President exercises this executive power on the advice of the Council of Ministers. While military officers and State Governors may have limited powers regarding certain sentences, the exclusive power to pardon a death sentence rests with the President. The exercise of this power, though largely discretionary, is subject to limited judicial review against arbitrariness or mala fide intent.