Presidential Clemency in India: Understanding Article 72 of the Indian Constitution


Presidential clemency is a constitutional provision that plays a pivotal role in India's justice system. Enshrined in Article 72 of the Indian Constitution, this power empowers the President to grant pardons, reprieves, respites, or remissions to individuals convicted of certain offenses. Article 72 serves as a safety valve against potential miscarriages of justice and allows for the exercise of mercy and compassion in appropriate cases. In this comprehensive blog, we will delve into the significance, scope, and limitations of Article 72, shedding light on its historical context and notable cases of presidential clemency. Let's explore how this constitutional provision strikes a balance between justice and humanity, and why it remains a beacon of hope for those seeking a second chance.

 I. The Historical Genesis of Article 72

Presidential clemency in India finds its roots in the British colonial era when the British Crown wielded the prerogative of mercy. This power allowed the sovereign to pardon or commute sentences of those convicted of crimes, acknowledging the inherent limitations of the legal system. After India's independence, the framers of the Constitution sought to ensure fairness and compassion in administering justice. Consequently, Article 72 was incorporated to grant the President the discretionary authority to exercise clemency in appropriate cases, reflecting the nation's commitment to principles of justice and humanity. 

II. The Scope and Nature of Presidential Pardons 

Article 72 confers upon the President four distinct powers of clemency: 

1. Pardon: 

A pardon is an absolute forgiveness of the offense, leading to the extinguishment of the conviction. The pardoned individual is treated as if they were never convicted, and all legal consequences of the conviction are removed. Pardons are typically granted in cases where there is evidence of a wrongful conviction, new evidence that proves innocence, or when the convict has demonstrated exemplary conduct and reformation during imprisonment.

2.  Reprieve: 

A reprieve involves the temporary suspension of the execution of a sentence. This is usually granted in cases where there are pending legal appeals or other factors that warrant a delay in carrying out the punishment.

3.  Respite: 

Respite refers to a reduction in the quantum of punishment without fundamentally changing the nature of the sentence. This may be granted in cases where the convict's physical or mental health is at risk, and serving the full sentence would be unduly harsh.

4.  Remission: 

Remission involves reducing or moderating the severity of the sentence without overturning the conviction. This may be done to alleviate the hardship faced by the convict or in cases where the sentence appears excessively harsh in hindsight. 

III. Constitutional Safeguards 

While Article 72 grants significant powers to the President, it also incorporates essential safeguards to prevent the misuse of this authority:

1.    Elected President: 

The President of India is a ceremonial head of state and is elected by an electoral college comprising elected representatives from both houses of Parliament and state legislatures. This electoral process ensures that the President is indirectly accountable to the people, reducing the likelihood of arbitrary use of clemency powers.

2.  Aid and Advice: 

Although the President possesses the power to grant pardons, reprieves, respites, or remissions, they must exercise this power in accordance with the advice of the Council of Ministers. The President acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are democratically accountable to the people.

3. Limited Jurisdiction: 

Article 72 specifies that the President's power extends only to cases involving offenses under central laws, not state laws. State pardoning powers are governed by Article 161, which grants similar powers to the Governor of each state. 

IV. The President's Role as the "Conscience Keeper"

The President of India is often referred to as the "conscience keeper" of the nation, and the power of pardoning is an integral aspect of this role. The President acts as a safety valve against potential miscarriages of justice, ensuring the law is not applied with undue severity or rigidity. Over the years, Presidents have exercised this power with prudence and discretion, often seeking recommendations from experts, legal advisors, and judicial authorities to ensure fairness and equity in their decisions. 

V. Notable Cases of Presidential Clemency 

Several landmark cases in India's history have involved the exercise of presidential clemency:

1. Kehar Singh v. Union of India (1988): 

This case dealt with the assassination of Prime Minister Indira Gandhi. Kehar Singh was convicted of conspiracy to murder, but the President rejected his plea for mercy, leading to his execution. This case raised debates about the role of clemency in political crimes.

2. Dhananjoy Chatterjee (2004): 

Dhananjoy Chatterjee was the last person to be executed in India before the abolition of the death penalty for rape. His plea for mercy was rejected by the President, sparking discussions on the appropriate use of the death penalty and the scope of presidential clemency.

3. Afzal Guru (2013): 

Afzal Guru was convicted for his role in the 2001 Parliament attack case. His mercy petition was rejected by the President, and he was subsequently executed. This case ignited intense debates about the right to life and the powers of clemency.

4. Yakub Memon (2015): 

Yakub Memon was convicted for his involvement in the 1993 Mumbai bombings. Despite widespread public appeals for clemency, the President rejected his mercy plea, leading to his execution. This case renewed discussions about the role of public sentiment in the exercise of presidential powers.

5.  Perarivalan (2021): 

Perarivalan, a convict in the Rajiv Gandhi assassination case, had his death sentence commuted to life imprisonment after the President considered the Tamil Nadu government's recommendation for clemency. This case highlighted the importance of state government's involvement in the process of clemency. 

VI. The Role of Public Sentiment and Clemency

Presidential clemency often becomes a matter of public interest and sentiment. In some cases, public outcry and appeals for clemency have influenced the decision-making process. However, it is essential to strike a balance between public sentiment and the principles of justice and equity. While public opinion should be considered, it cannot be the sole basis for granting clemency, as the decision must be guided by the merits of each case and constitutional principles.

VII. Evolution of Clemency in India

Over the years, the concept of clemency has evolved in India, reflecting changing societal norms and attitudes towards punishment and rehabilitation. There has been a gradual shift towards a more nuanced approach, considering factors like reformation, mental health, and the impact of the crime on the convict's life. This approach aligns with international human rights standards that emphasize the need for humane treatment of prisoners and the potential for rehabilitation. 

VIII. The Imperative of Judicial Review

While the President's power of clemency is extensive, it is not immune to judicial review. The Supreme Court of India has emphasized that the President's decision can be scrutinized if it is found to be arbitrary, irrational, or based on extraneous considerations. Judicial review ensures that the exercise of this power remains within the bounds of constitutional principles and the rule of law. 

IX. Conclusion

Article 72 of the Indian Constitution bestows a unique and significant responsibility upon the President, emphasizing the need for justice to be tempered with compassion and humanity. The power of clemency reflects the belief in the capacity for redemption and second chances, recognizing the complexities of human nature and the potential for rehabilitation. As India's democracy evolves, Article 72 will continue to play a crucial role in shaping the nation's pursuit of justice and social equity. Striking the right balance between the principles of justice, public sentiment, and the scope of presidential clemency will be essential in ensuring a fair and equitable justice system that upholds the values of compassion and humanity.


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