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According to the constitution, the people have given the high-status head of state the authority to pardon, and this authority is based on the President's advice from the Executive. The Indian legal system has not fared well due to the absence of any guidelines or safeguards regarding the use of the mercy authority. The requirement for a principled use of the clemency authority is highlighted by the shifting political landscape of today. A greater number of death sentence cases are making their way through the clemency process as a result of stricter sentencing guidelines and rising public support for the death penalty. The purpose of the article is to examine various issues pertaining to the scope of the President's pardoning power under the Indian Constitution. It also provides a brief overview of the origin and nature of the pardoning power.


No legal authority may behave erratically like John Gilpin on a horse, thus no matter how broad the power of pardon, commutation, and release (Articles 72 and 161) is, it cannot go amok. Instead, it must maintain a sensible steady path.

These statements of Justice Krishna Iyer astutely encapsulate the scope and depth of the pardoning authority as it exists in India. This three-part article examines the development of the pardoning authority in India as well as the pertinent and significant subject of judicial scrutiny of such pardons. The second section explores the pardoning authority in light of pertinent constitutional provisions, while the first portion covers the topic generally. The President's authority to pardon from the standpoint of its judicial treatment is examined in the third and most important part.


The President of the Indian Union is granted a special power known as the "pardoning power" under Article 72 of the Indian Constitution. An act of grace, a pardon cannot be regarded as a matter of right. To give relief from extreme severity or clear faults in the execution or enforcement of the criminal law. It's a check given to the executive under certain circumstances.

As a result, it is clear that the purpose of this power, which is typically referred to as the President's "mercy jurisdiction" is to repair potential judicial errors because no human system of judicial administration is immune from flaws. Many other nations across the world also have the ability to pardon. For instance, the British Crown, where it is regarded as the royal prerogative, and the American Sovereign, who is the President of the United States of America, both have similar powers.

The genus and several species of acts that are included in the phrase "pardoning authority" include pardon, reprieve, respite, remission, suspension, and commutation. A pardon totally absolves the culprit of all blame. As a result, it is clear that a pardon has the legal consequence of absolving the offender of all culpability.


The President of India has the right to use the pardoning power under Article 72 of the Constitution with regard to a penalty or sentence by a Court Martial, with regard to an offence against a legislation related to the executive power of the Union, or in the case of a death sentence.

The President has broad pardoning authority that covers the entirety of India. The specifics of each situation will determine the extent of the President's authority. The President may use his or her pardoning authority to protect a person from the repercussions of an offence or from a punishment related to that offence. A pardon must be awarded for an actual crime, not just a simple failure to follow a franchise agreement's terms.

The President's ability to use the pardoning power at his or her discretion or if he is constrained by the recommendations of the Council of Ministers is one of the key points of disagreement. The President cannot use his or her own judgement in this subject, the Supreme Court clearly said in the precedent-setting case of Maru Ram v. Union of India instead, the President relies on the assistance and counsel of the Council of Ministers. The legal position on the matter was very clearly stated by Justice Krishna Iyer in his landmark decision, which said that "Governor" was only a colloquial term for the State Government and "President" was an acronym for the Central Government.

However, it has been observed that the President's use of the pardoning authority on the Council of Ministers' recommendation is not without its own set of issues. In Kehar Singh's case, jurists like Thakur claimed that the guilty parties' appeal could never have been successful because Kehar Singh was responsible for the killing of Prime Minister and Congress leader Smt. Indira Gandhi and the Congress were then in control at the federal level. Additionally, this issue is not resolved in a coalition administration either since the council is unable to provide the President with a free and objective view because of competing party interests.

This causes further issues and, in the opinion of many academics, supports the necessity for judicial scrutiny of the President's pardoning power.


The exciting judicial technique used in the investigation of the President's pardoning power is one of its most intriguing features. This section examines the type and scope of judicial review of the President's pardoning authority with an emphasis on important case law. Pre-Maru Ram, Maru Ram, and Post-Maru Ram phases make up its three sections.


The case of K.M. Nanavati v. State of Bombay[1] is one of the first seminal instances in which the Court examined the issue of an executive's ability to pardon. Due to conceptual similarities and relevance to the current case, the court's concern with the Maharashtra Governor's use of his pardoning authority is examined below.

The Bombay High Court found Indian Navy Commander Nanavati guilty of murder and sentenced him to life in prison. In spite of this, the Bombay Governor postponed his punishment while he filed an appeal with the Supreme Court.

It is important to note that at the time, the Court had established a regulation under Article 145 of the Constitution stating that, unless the Court determines differently, a petitioner serving a life sentence must first relinquish his or her sentence before the petition may be heard. Nanavati argued before the Supreme Court that he was immune from the same because of the Governor's decree.

By a vote of 4-1, the Supreme Court ruled that the Governor's order was unconstitutionally lawful and that it would only be in effect while the matter was pending before the court at the time the petition for special leave was filed. Seervai argued in court that while the court may delay a sentence or provide bail while the special leave petition was being heard, this would not impact the executive's ability to pardon, in the broadest definition of the word.

This prompted the Court to examine the pardoning power's nature and reach. The Court claims that the ability of the Court to suspend the sentence while the exceptional leave is pending overlaps with the Executive's authority to do so. The rule of harmonic construction between the two governmental organs was therefore adopted by the Court. The majority ruling, according to Seervai, "obviously misapplied the principle of harmonic construction, because it created disharmony between two fundamental provisions when none existed."

Thus, it can be observed that the Court established a completely new constraint to the pardoning power in the Nanavati case by exercising review. However, it is important to note that the same bench unanimously adopted Kapur, J.'s dissenting view in Nanavati's case in Sarat Chandra Rabha v. Khagendra Nath[2], another case. In the case of Rabha, the Court made it very obvious that the executive and judicial branches of government work on separate levels and are unrelated to one another.

The case of G. Krishta Goud v. State of Andhra Pradesh[3] is another instance in which the Supreme Court made the decision to express its opinions on the Pardoning Power. The petitioners in this case asked the Supreme Court to have the President's denial of clemency reviewed because the petitioners were murderers and the President of India had refused to show pity to them.

According to the court's ruling in this case, the pardoning authority provided to the President and the Governor was historically a sovereign power, politically a residuary power, and morally a help to intangible justice. The Court was apprehensive about conducting judicial review of the President's choice.

A republic's citizens serve as the power's repository and beneficiaries, hence no authority in a republic is irresponsible or irresponsive. But our constitutional framework has two limits. The Court is not an omniscient, omnipotent, or omnipresent being that can intervene anywhere. And when the Constitution, as it has in this case, has given the nation's highest Executive authority while implicitly barring judicial review, it is intrusive for this Court to have unfettered jurisdiction.

As a result, the Court in this case showed considerable reluctance to even consider the Court's ruling. It is important to note that the case's cited line assumes that public authority is not reckless from the outset. In reality, Krishna Iyer, J. finally issued a warning, saying that "if gruesomely entrenched, the Supreme Court may not be mute and helpless. Absolute, arbitrary law-unto-oneself mala fide application of public authority."

So, despite the Court's initial hesitancy, it ultimately limited the President's and the Governor's ability to pardon by its interpretation and aggressive stance.


The Maru Ram v. Union of India[4] The case is another important one in this area. The purpose of the lawsuit was to contest the legitimacy of Section 433A of the Code of Criminal Procedure, 1973, which required two types of criminals to spend a minimum of fourteen years in real custody. In this regard, the petitioners argued that Section 433A was ineffectual because it interfered with the operation of Section 433(a), which they said served as "legislative surrogates" for the Constitution's pardoning authority. Although the constitutional and legislative powers regarding pardons are similar and coextensive, the Court stated in its landmark opinion by Krishna Iyer J. that they are not the same.

He stated that all public authority, including constitutional power, should not be used in an arbitrary or dishonest manner and that, typically, rules for fair and equitable execution are the best assurances of the legal play of power. As it will "exclude the vice of discrimination such as may arise when two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour, or political loyalty," the Court suggested for the first time in this case that guidelines be established for the purpose of the President exercising his pardoning power.

In contrast to the Krishta Goud case, when the Court initially showed great reluctance and eventually conceded that in some circumstances, it would not be prohibited from exercising judicial review, Maru Ram's case looks to be a step forward. However, it is clear from the current case that Krishna Iyer, J. is no longer reluctant to use the judicial review and strongly urges the government to establish standards to regulate the use of the pardoning authority.


Kehar Singh v. Union of India[5] is another significant ruling in this vein. Singh was found guilty of murdering Smt. Indira Gandhi, the country's then-prime minister, in accordance with Sections 120B and 302 of the Indian Penal Code, and he was given the death penalty as punishment. He then sent a petition to the President requesting the use of his Article 72 powers. "The President is of the opinion that he cannot get into the merits of a matter that has been conclusively resolved by the Highest Court of the Land," the President said in response to the argument.

It is clear that the Kehar Singh case supported Maru Ram's ruling on the issue of judicial review of the pardoning authority of the President. It is important to note, nevertheless, that there has recently been a rising concern among scholars that the Court, in its enthusiasm to examine the pardoning power, may err and usurp the President's authority. Inadvertently, this would lead to an examination of the case's significant merits. The author believes that since the Indian judiciary has up till now used a well-balanced manner of review, such worry is not warranted. The Supreme Court has upheld the requirements set forth in the Maru Ram's case even in the most recent case of Epuru Sudhakar v. Govt. of A.P.[6]


A well-known example of how the law has changed as a result of judicial interpretation is the judicial review of the pardoning authority. Beginning with a strong reluctance to even consider the topic, the tendency has since changed to one that is more moderate and on the centre ground. In order to define their function in situations of review, the courts have mainly agreed upon the verdict rendered in Maru Ram's case and the restrictions placed therein. There is general agreement that the court cannot review the decision's merits other than in instances of arbitrariness, malice aforethought, or ignorance of certain important information. Even while the courts have occasionally gone over the fine line that limits the extent of their review, as established in Maru Ram's case, it is believed that such instances are an exception. Since the Court has barely deviated from the course indicated by the Maru Ram verdict, if at all, these should be disregarded. This makes this authority a necessary and essential component of the Constitution, and it is anticipated that those who have it would apply it in a fair and unbiased manner while the court continues to serve as a watchdog in such situations.

-- [1] K.M. Nanavati v. State of Bombay 1961 AIR 112, 1961 SCR (1) 497 [2] Sarat Chandra Rabha v. Khagendra Nath 1961 AIR 334, 1961 SCR (2) 133 [3] G. Krishta Goud v. State of Andhra Pradesh (1976) 1 SCC 157, [1976] 2 SCR 73, 1975 (7) UJ 951 (SC) [4] Maru Ram v. Union of India 1980 AIR 2147, 1981 SCR (1)1196 [5] Kehar Singh v. Union of India 1989 AIR 653, 1988 SCR Supl. (3)1102 [6] Epuru Sudhakar v. Govt. of A.P (2006) 8 SCC 161

This article is written by Parth Gupta of Panjab University.

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