Article 72 of Indian Constitution

Article 72 of the Constitution of India deals with the Pardoning Power of the President. It allows the President to grant pardon, reprieve, respite, r

Article 72 of the Indian Constitution – Powers of the President to Grant Pardons

The President of India holds various powers under the Constitution — executive, legislative, financial, judicial, and emergency powers. Among the judicial powers, one of the most significant is the power to grant pardon and other forms of clemency under Article 72. This article gives the President the authority to reduce, remit, or completely cancel punishments given by courts, especially in serious cases such as death sentences.

Let us explore Article 72 in detail, including its meaning, types of pardons, scope, difference from Article 161, landmark judgments, and recent developments.

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🧾 What is Article 72?

Article 72 of the Constitution of India deals with the Pardoning Power of the President. It allows the President to grant pardon, reprieve, respite, remission, suspend, or commute sentences in certain cases. These are:

1. When the punishment is by a court-martial (military court).

2. When the punishment is for an offence against a law relating to a matter under the Union’s executive power.

3. When the sentence is a death sentence.

So, this power is judicial in nature, but executed by the President as the head of the Union Executive.

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🔎 Text of Article 72 (Simplified)

“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.”

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📘 Meaning of Key Terms in Article 72

Let’s understand the terms used in Article 72 in easy words:

• Pardon – It means completely forgiving the offence. The person is treated like he/she was never convicted. The conviction is removed, and all punishments are cancelled.

• Reprieve – A temporary delay in the execution of a sentence, especially in capital punishment. It gives time for further consideration or an appeal.

• Respite – Reducing the degree of punishment, especially if there are special circumstances like pregnancy or physical disability.

• Remission – Reducing the duration of the sentence without changing its nature. For example, reducing a 10-year sentence to 5 years.

• Suspension – Stopping the sentence for a temporary period. It may later be reinstated or cancelled.

• Commutation – Changing the type of punishment into a less severe one. For example, changing death sentence to life imprisonment.

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🏛️ Scope of the President’s Power under Article 72

The power under Article 72 is not subject to judicial review on merits. However, the Supreme Court has held that this power cannot be exercised arbitrarily. The President must consider all facts, reports, and legal grounds.

This power is executive in nature but must be exercised on the advice of the Council of Ministers, led by the Prime Minister (as per Article 74).

In the case of Kehar Singh vs. Union of India (1989), the Supreme Court ruled that the President’s decision cannot be challenged on merits but can be reviewed if the process was unfair, based on irrelevant grounds, or ignored important facts.

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⚖️ Article 72 vs Article 161 – President vs Governor

Point	Article 72 (President)	Article 161 (Governor)
Authority	President of India	Governor of a State
Applies to	Union Laws & Death Sentences	State Laws
Court-martial cases	Yes	No
Death sentence	Yes	Yes
Scope	Wider	Limited
Advice taken from	Union Council of Ministers	State Council of Ministers

So, while both powers are similar, the President has wider powers, especially regarding court-martial and death penalty cases.

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📜 Landmark Judgments Related to Article 72

1. Maru Ram vs Union of India (1980)

   • The Supreme Court held that the President’s power is not personal. It is exercised on the advice of the Cabinet.

   • However, the advice must be fair, just and reasonable.

2. Kehar Singh vs Union of India (1989)

   • The court clarified that the President can examine the evidence afresh when deciding on a mercy petition.

   • However, the court cannot go into the merits of the President’s decision.

3. Epuru Sudhakar vs Government of Andhra Pradesh (2006)

   • The court ruled that clemency powers are not above the law.

   • Mercy petitions can be challenged in court if the decision is based on political or irrelevant considerations.

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🧾 Procedure to File a Mercy Petition

A mercy petition is usually filed after all legal remedies are exhausted:

1. Filing the petition – The convict or their family files the mercy petition to the President (via the Ministry of Home Affairs).

2. Review by MHA – The Ministry of Home Affairs takes opinions from state governments, jail authorities, and the trial court.

3. Recommendation – Based on inputs, the Home Ministry sends its recommendation to the President.

4. Decision – The President considers all reports and makes the final decision.

The process can take months or even years. However, unreasonable delay in deciding mercy petitions can itself be a ground for commuting death sentences.

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⏳ Delay in Mercy Petitions – A Concern

In many cases, mercy petitions have remained pending for years. This leads to:

• Mental agony to the prisoner.

• Questions on fairness of justice.

• Violation of Article 21 (Right to Life).

In Shatrughan Chauhan vs Union of India (2014), the Supreme Court said that long delay in deciding mercy petitions is inhuman, and it can be a reason to commute death sentence to life imprisonment.

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🧠 Why is Article 72 Important?

1. Humanitarian Purpose – Provides a chance to correct harsh judgments, especially in exceptional cases.

2. Check on Judiciary – Acts as a safety valve to correct possible judicial errors.

3. Executive Discretion – Allows the executive to consider broader aspects like public opinion, political stability, or mercy in special cases.

4. Constitutional Morality – Reflects the idea that justice is not just legal, but also moral and compassionate.

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📰 Recent Examples of Mercy Petitions

• In the Nirbhaya gang rape case, the convicts filed multiple mercy petitions under Article 72, but the President rejected all of them.

• In Yakub Memon’s case (Mumbai bomb blast), his mercy petition was also rejected by the President after thorough review.

These examples show that while mercy petitions offer a last chance, they are not granted easily and go through a rigorous process.

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❓Can Article 72 be Misused?

There are debates on whether the power can be used for political gain or based on emotional reasons rather than legal ones. But the courts have clarified that:

• The President must act on advice and not personally.

• The decision must be rational, not arbitrary.

• If misused, the courts can review it.

Hence, while there is scope for misuse, the legal checks and balances are in place.

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✍️ Conclusion

Article 72 of the Indian Constitution is a powerful humanitarian provision. It reflects the principle that even in the harshest situations, the Constitution believes in compassion, mercy, and second chances. While it does not override the judicial system, it gives the President (and indirectly the government) a chance to correct possible errors, respond to public sentiment, or act on humanitarian grounds.

In a democratic society, justice must be fair — but also humane. Article 72 ensures that law does not lose its heart, even when it has to be strict.