Article 72

 Day 15th

Summer Internship Program

Akanksha Tiwari

Amity University Gwalior Madhya Pradesh

Date 30th july

Module VIP Author

Written Assignment Day

Topic

Article 72 Pardoning

Communication of death sentence

Recently, the President of India has decided to commute the death sentence of an accused

(convicted over the assassination of then Punjab Chief Minister) as a humanitarian gesture

ahead of the 550th birth anniversary celebrations of the founder of Sikhism, Guru Nanak Dev Ji.

● In the last nine years, the President commuted at least 20 death sentences to life

imprisonment, based on the recommendations of the Ministry of Home Affairs (MHA).

Constitutional Provision to Grant Pardon: Article 72

● Article 72 of the Constitution empowers the President to grant pardons to persons who

have been tried and convicted of any offence in all cases where the:

● Punishment or sentence for an offence against a Union Law,

● Punishment or sentence is by a court-martial (military court), and

● Punishment is a Death sentence.

Pardoning Power of President

● Article 72 empowers the President 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. The meaning of these terms is as follows:

● Pardon: It removes both the sentence and the conviction and completely absolves the

convict from all sentences, punishments, and disqualifications.

● Commutation: It denotes the substitution of one form of punishment with a lighter form of

punishment. For example, a death sentence may be commuted to rigorous

imprisonment.

● Remission: It implies reducing the period of the sentence without changing its character.

For example, a sentence of rigorous imprisonment for five years may be remitted to

rigorous imprisonment for one year.

● Respite: It denotes awarding a lesser sentence in place of one originally awarded due to

some special fact, such as the physical disability of a convict or the pregnancy of a

woman offender.

● Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a

temporary period. Its purpose is to enable the convict to have time to seek pardon or

commutation from the President.

Procedure Followed for Granting Pardon

● The process starts with filing a mercy petition with the President under Article 72 of the

Indian Constitution.

● Such a petition is then sent to the Ministry of Home Affairs for consideration which is

then consulted with the concerned State Government.

● After the consultation, recommendations are made by the Home Minister and the petition

is sent back to the President.

Purpose of Granting Pardon

● Pardon may substantially help in saving an innocent person from being punished due to

miscarriage of justice or in cases of doubtful conviction.

● The object of conferring this power on the President is two-fold:

● To keep the door open for correcting any judicial errors in the operation of law;

● To afford relief from a sentence, which the President regards as unduly harsh.

Judicial Stand on Pardoning Powers

● In Maru Ram v Union of India case (1980), the constitutional bench of the Supreme

Court of India held that the power under Article 72 is to be exercised on the advice of the

Central Government and not by the President on his own at his discretion. And that the

advice of the Government is binding on him.

● The Supreme Court in Epuru Sudhakar v Ors. case (2006) to rule out any case of

arbitrariness or executive mala fide upheld that the granting of clemency by the

President or Governor can be challenged in court on various grounds such as, the order

has been passed without application of mind, or the order is mala fide, or the relevant

material has been kept out of consideration.

Difference Between Pardoning Powers of President And Governor

● The scope of the pardoning power of the President under Article 72 is wider than the

pardoning power of the Governor under Article 161 which differs in the following two

ways:

● The power of the President to grant pardon extends in cases where the punishment or

sentence is by a Court Martial but Article 161 does not provide any such power to the

Governor.

● The President can grant pardon in all cases where the sentence given is the sentence of

death but the pardoning power of the Governor does not extend to death sentence

cases.