Article 72 of the Indian Constitution

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Article 72 of Indian Constitution | Complete Guide to President's Pardoning Power, Mercy Petitions & Landmark Cases

Article 72 of Indian Constitution — Complete Guide to President's Pardoning Power, Mercy Petitions & Landmark Cases

When we talk about the Indian Constitution, most people immediately think of Fundamental Rights like freedom of speech, equality, or the right to life. But tucked away in Part V, Chapter I of the Constitution lies one of the most powerful yet least understood provisions — Article 72. This article gives the President of India the extraordinary power to grant pardons, reprieves, respites, remissions, and to commute sentences of convicted persons.

This is not just a legal technicality. It is a power that has saved lives, changed the course of justice, and sparked some of the most intense constitutional debates in India's history. From the Kehar Singh case (involving the assassination of Prime Minister Indira Gandhi) to the Shatrughan Chauhan case (which challenged death penalty delays), Article 72 has been at the center of landmark judicial decisions that have shaped how mercy works in the Indian legal system.

In this comprehensive guide, we will break down Article 72 of the Indian Constitution in plain, simple language. Whether you are a law student preparing for competitive exams, a judiciary aspirant looking to master constitutional law, or simply a curious citizen wanting to understand how the President's mercy power works — this article is for you. We will cover the text of Article 72, the five types of clemency it provides, the procedure for filing mercy petitions, the landmark Supreme Court cases that defined its limits, and how it differs from Article 161 (the Governor's pardoning power).

What is Article 72 of the Indian Constitution?

Article 72 is a constitutional provision that grants the President of India the power to exercise mercy in certain criminal cases. It is part of the Executive powers of the President and is located in Part V (The Union), Chapter I (The Executive) of the Constitution. The framers of the Constitution deliberately included this provision to ensure that the executive could correct possible judicial errors, show compassion in deserving cases, and maintain a humane balance in the justice system.

The exact text of Article 72 reads as follows:

"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;

Clause (2) of Article 72 further clarifies that nothing in sub-clause (a) shall affect the power conferred by law on any officer of the Armed Forces to suspend, remit, or commute a sentence passed by a Court Martial. Clause (3) states that nothing in sub-clause (c) 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.

In simple words, the President can show mercy in three specific categories of cases: military court convictions, offences against Union laws, and death penalty cases. The last category is particularly significant because it gives the President a parallel and superior power even over state Governors when it comes to capital punishment.

The Five Types of Clemency Under Article 72

Article 72 uses five distinct legal terms to describe the different ways mercy can be shown. Understanding each of these is crucial because they have different legal effects on the convicted person. Let us break them down one by one:

Pardon

A pardon is the most complete form of clemency. When the President grants a pardon, it means the convict is completely absolved of all guilt, punishment, and disqualifications arising from the conviction. It is as if the person never committed the offence at all. The pardon wipes the slate clean — the conviction is erased, and the person is restored to the same position they held before the crime was committed.

For example, if a person was convicted of a crime and lost their voting rights or government job eligibility due to that conviction, a pardon would restore all those rights. It is the ultimate act of executive mercy and the most powerful tool under Article 72.

Reprieve

A reprieve is a temporary suspension of a sentence, usually a death sentence. It does not reduce or cancel the punishment — it simply delays its execution. Reprieves are typically granted to give the convict more time to file an appeal, seek legal remedies, or allow the government to review the case more carefully.

Think of a reprieve as a pause button on the execution of a sentence. The convict remains convicted, but the punishment is put on hold for a specified period. This is particularly important in death penalty cases where the convict may have exhausted all judicial remedies but still seeks executive mercy.

Respite

A respite involves awarding a lesser punishment on special grounds. Unlike a pardon, a respite does not erase the conviction — it simply reduces the severity of the sentence. For example, a death sentence might be reduced to life imprisonment, or rigorous imprisonment might be reduced to simple imprisonment.

Respite is usually granted when there are mitigating circumstances that were not fully considered during the trial. Common grounds include the convict's age, physical or mental health condition, pregnancy (in case of women), or other humanitarian factors that justify a lighter sentence.

Remission

Remission means reducing the duration of a sentence without changing its character. For instance, if a person was sentenced to 10 years of rigorous imprisonment, a remission might reduce it to 5 years. The person still serves the same type of punishment, but for a shorter period.

Remission is different from respite because it only affects the length of the sentence, not its nature. It is commonly used in cases where the convict has shown good behavior in prison, or where the original sentence was considered disproportionately harsh.

Commutation

Commutation involves changing one form of punishment to another of a lighter character. For example, a death sentence may be commuted to life imprisonment, or life imprisonment may be commuted to a term of 20 years. Commutation changes the nature of the punishment itself.

This is one of the most frequently used forms of clemency under Article 72. In death penalty cases, the President often commutes the sentence to life imprisonment, especially when there are doubts about the fairness of the trial or when the convict has spent many years on death row.

Scope and Coverage of Article 72 — Three Categories of Cases

The power of the President under Article 72 is not unlimited. It applies only to three specific categories of cases, as outlined in sub-clauses (a), (b), and (c) of clause (1). Let us examine each category in detail:

Category A: Court Martial Cases

Under Article 72(1)(a), the President can grant clemency in all cases where the punishment or sentence has been imposed by a Court Martial. Courts Martial are military tribunals that try offences committed by members of the armed forces under laws like the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950.

This provision recognizes that military justice operates under a different framework from civilian courts. The President, as the Supreme Commander of the Armed Forces, has the ultimate authority to review and correct sentences passed by military courts. This power is essential for maintaining discipline while ensuring fairness in the military justice system.

However, clause (2) of Article 72 makes it clear that this presidential power does not take away the authority of military officers to suspend, remit, or commute sentences under their respective service laws. The President's power is additional and superior, not exclusive.

Category B: Offences Against Union Laws

Under Article 72(1)(b), the President can grant clemency for offences against any law relating to a matter to which the executive power of the Union extends. This means laws made by Parliament under the Union List (List I) and the Concurrent List (List III) of the Seventh Schedule.

Examples of such laws include the Indian Penal Code (IPC), the Prevention of Terrorism Act (POTA), the Unlawful Activities (Prevention) Act (UAPA), the Narcotic Drugs and Psychotropic Substances Act (NDPS), and various other central legislations. If a person is convicted under any of these central laws, the President has the power to grant mercy.

This category is broad and covers a wide range of offences, from economic crimes to terrorism-related offences. The key factor is that the offence must be under a law that falls within the legislative competence of Parliament.

Category C: Death Sentence Cases

Under Article 72(1)(c), the President has the power to grant clemency in all cases where the sentence is a sentence of death, regardless of the law under which the person was convicted. This is the most significant and frequently invoked provision of Article 72.

The death penalty is the most extreme form of punishment, and once executed, it is irreversible. The framers of the Constitution recognized that even after the highest courts have confirmed a death sentence, there may be grounds for mercy — new evidence, mitigating circumstances, prolonged delay, or simply humanitarian considerations. Article 72(1)(c) provides a final safety valve before the state takes a life.

Importantly, clause (3) of Article 72 clarifies that the President's power under this sub-clause does not affect the Governor's power to suspend, remit, or commute a death sentence under state laws. This means both the President and the Governor have concurrent powers in death penalty cases, but the President's power is wider and superior because it extends to all death sentences, including those under state laws.

How Does the Mercy Petition Process Work?

Filing a mercy petition under Article 72 is not as simple as writing a letter to the President. There is a well-defined procedure that must be followed, and understanding this process is crucial for anyone seeking clemency or advising a client. Here is the step-by-step breakdown:

Step 1: Exhaustion of Judicial Remedies

Before a mercy petition can be filed under Article 72, the convict must have exhausted all judicial remedies. This means the person must have gone through the entire appeal process — from the trial court to the High Court, and finally to the Supreme Court of India. The mercy petition is a last resort, not an alternative to the judicial process.

In death penalty cases, the convict can also file a review petition and a curative petition in the Supreme Court before approaching the President. Only after all these judicial avenues have been exhausted can the mercy petition be filed.

Step 2: Filing the Mercy Petition

The mercy petition is typically filed by the convict or their legal representative (usually a family member or lawyer). The petition is addressed to the President of India and submitted to the Ministry of Home Affairs (MHA), which handles mercy petitions on behalf of the President.

The petition must include:

Details of the case, including the FIR number, court judgments, and sentence imposed
Grounds for seeking mercy — such as new evidence, mitigating circumstances, health conditions, or humanitarian reasons
Personal details of the convict, including family background, age, and conduct in prison
Copies of all relevant court orders and judgments
Any supporting documents, such as medical reports or character certificates

Step 3: Ministry of Home Affairs Review

Once the mercy petition is received, the Ministry of Home Affairs initiates a detailed review process. The MHA seeks comments from the State Government where the offence was committed, the prison authorities, and the prosecution agency. It also reviews the entire case record, including trial court proceedings, appeal judgments, and any new evidence presented.

The MHA prepares a detailed report with its recommendations and forwards it to the President through the Union Council of Ministers. The President does not act independently — under Article 74(1), the President is bound to act on the aid and advice of the Council of Ministers.

Step 4: President's Decision

The President considers the MHA's recommendation and the advice of the Council of Ministers before making a decision. The President's decision is final and not subject to judicial review on merits — though the Supreme Court has held that the process of decision-making can be reviewed for arbitrariness, mala fide, or non-application of mind.

If the President rejects the mercy petition, the convict can file a writ petition in the Supreme Court challenging the manner in which the petition was rejected — but not the substance of the decision itself. This distinction is crucial and has been clarified in several landmark cases.

Step 5: Communication of Decision

Once the President makes a decision, it is communicated to the State Government and the prison authorities within 48 hours. If the mercy petition is accepted, the sentence is suspended, remitted, commuted, or pardoned as the case may be. If it is rejected, the execution of the sentence proceeds as scheduled.

Article 72 vs Article 161 — Understanding the Difference

Many people confuse Article 72 with Article 161 of the Indian Constitution. While both provisions deal with pardoning powers, they are not identical. Understanding the differences is essential for law students and legal professionals. Here is a clear comparison:

Who Holds the Power?

Article 72: The power is vested in the President of India, who is the head of the Union.
Article 161: The power is vested in the Governor of a State, who is the head of the state executive.

Scope of the Power

Article 72: The President's power extends to all cases where the punishment is by a Court Martial, all cases of offences against Union laws, and all cases of death sentences — regardless of whether the offence falls under Union or State law.
Article 161: The Governor's power extends only to offences against state laws — that is, laws relating to matters in the State List (List II) and the Concurrent List (List III) where the state has legislative competence. The Governor cannot pardon offences against Union laws or Court Martial cases.

Death Sentence Cases

Article 72: The President has the power to pardon or commute any death sentence, including those imposed under state laws. This is because Article 72(1)(c) uses the broad phrase "in all cases where the sentence is a sentence of death" without limiting it to Union laws.
Article 161: The Governor can also suspend, remit, or commute death sentences under state laws, but this power is subordinate to the President's power. If the Governor rejects a mercy petition, the convict can still approach the President under Article 72.

Superiority of the President's Power

Article 72(3) explicitly states that the President's power under sub-clause (c) does not affect the Governor's power to commute death sentences. However, in practice, the President's power is considered superior because it covers all death sentences, including those under state laws. The Supreme Court has held that the President sits at the top of the constitutional hierarchy of mercy powers.

Moreover, a Home Ministry circular dated 5 March 1991 stated that once the President has exercised power under Article 72, it is not open for the state government to exercise similar power under Article 161 in the same case. However, the Supreme Court has questioned whether this executive instruction can override a constitutional power.

Landmark Supreme Court Cases on Article 72

The true meaning and limits of Article 72 have been shaped by some of the most important judgments in Indian constitutional history. These cases have clarified whether the President's power is absolute, whether it is subject to judicial review, and what grounds can be used to challenge a mercy petition rejection. Let us examine the key cases:

Kehar Singh v. Union of India (1989) — The Indira Gandhi Assassination Case

This is perhaps the most famous case involving Article 72. Kehar Singh was one of the conspirators in the assassination of Prime Minister Indira Gandhi in 1984. He was sentenced to death by the trial court, and the sentence was confirmed by the Delhi High Court and the Supreme Court. After exhausting all judicial remedies, Kehar Singh filed a mercy petition under Article 72.

The President rejected his mercy petition, and Kehar Singh challenged the rejection in the Supreme Court. The Supreme Court, in a landmark judgment, held that:

The President's power under Article 72 is a constitutional power and not a mere prerogative.
The President must act on the aid and advice of the Council of Ministers under Article 74(1).
The power is not absolute or unfettered — it must be exercised on relevant considerations and not arbitrarily.
However, the merits of the decision (whether to grant or reject mercy) cannot be questioned in court. Only the process can be reviewed.

The Court ultimately dismissed Kehar Singh's petition, and he was executed in 1989. This case established the foundational principle that while the President's mercy power is wide, it is not beyond constitutional scrutiny.

Maru Ram v. Union of India (1981) — The Constitutional Obligation Case

In Maru Ram v. Union of India, the Supreme Court addressed a crucial question: Is the President's power under Article 72 a mere privilege or a constitutional duty? The Court held that the power is not a personal privilege of the President but a constitutional obligation that must be exercised responsibly.

The Court emphasized that:

The President must act on the advice of the Council of Ministers and cannot exercise personal discretion.
The power must be exercised within a reasonable time — undue delay in disposing of mercy petitions can itself be a ground for judicial intervention.
The power is subject to judicial review on limited grounds such as mala fide, arbitrariness, non-application of mind, and extraneous considerations.

This case was a turning point because it established that mercy is not a gift from the executive but a constitutional right of the convict that must be considered fairly and promptly.

Epuru Sudhakar v. Government of Andhra Pradesh (2006) — Widening Judicial Review

In this case, the Supreme Court significantly widened the scope of judicial review of pardoning powers. The Court held that the President's and Governor's pardoning powers under Articles 72 and 161 can be challenged on the following grounds:

The order was passed without application of mind
The order is mala fide (bad faith)
The order was passed on extraneous or wholly irrelevant considerations, such as political affiliation, caste, or religion
Relevant materials were kept out of consideration
The order suffers from arbitrariness

This judgment was significant because it explicitly listed the grounds on which a mercy petition rejection could be challenged, providing much-needed clarity to convicts and their lawyers.

Shatrughan Chauhan v. Union of India (2014) — The Death Penalty Delay Case

This is one of the most important cases on Article 72 in recent times. The Supreme Court held that undue delay in deciding mercy petitions by the President is a valid ground for commutation of the death sentence to life imprisonment. The Court reasoned that:

Delay in execution of a death sentence causes immense mental agony and torture to the convict, which amounts to cruel and inhuman treatment under Article 21.
If the delay is inordinate and unexplained, the death sentence should be commuted to life imprisonment.
The Court laid down that a delay of more than a reasonable period (which the Court suggested should not exceed a few years) would be grounds for commutation.

This judgment was a landmark because it linked the right to life under Article 21 with the mercy process under Article 72, creating a powerful constitutional safeguard against prolonged death row suffering.

State (Government of NCT of Delhi) v. Prem Raj (2003) — The Absolute Power Doctrine

In this case, the Supreme Court recognized that the power under Articles 72 and 161 is a "sovereign power to grant pardon" that is absolute and unfettered and cannot be curtailed by statute. The Court emphasized that this power is derived directly from the Constitution and cannot be limited by ordinary laws.

However, the Court also clarified that this "absolute" nature refers to the scope of the power, not the manner of its exercise. The executive must still act fairly, reasonably, and without malice.

K.M. Nanavati v. State of Bombay (1961) — The Governor vs. Supreme Court Conflict

While this case primarily dealt with Article 161 (the Governor's power), it has significant implications for Article 72 as well. Commander K.M. Nanavati, a naval officer, was convicted of murder in a highly publicized case. While his appeal was pending in the Supreme Court, the Governor of Bombay suspended his sentence under Article 161.

The Supreme Court held that:

The Governor has the power to grant a full pardon at any stage, including during the pendency of an appeal.
However, the Governor cannot suspend a sentence when the matter is sub judice before the Supreme Court. The power to suspend a sentence during pendency lies with the Court under Article 142, not with the Governor.
This case established the principle that while the executive's pardoning power is wide, it must harmoniously coexist with the judiciary's powers.

Judicial Review of Article 72 — Can Courts Interfere?

This is one of the most debated questions in Indian constitutional law: Can the courts review the President's decision under Article 72? The short answer is: Yes, but only to a limited extent.

The Supreme Court has consistently held that the President's power under Article 72 is a constitutional power, not a personal privilege, and therefore it is subject to judicial review. However, the scope of review is narrow and does not extend to the merits of the decision. Here is what the courts can and cannot review:

What Courts CAN Review

Whether the President applied their mind to the petition — Did the President actually consider the case, or was the rejection a mechanical process?
Whether the decision was mala fide — Was the rejection made in bad faith, with an intention to harm the convict?
Whether extraneous considerations were involved — Did political pressure, caste, religion, or other irrelevant factors influence the decision?
Whether relevant materials were ignored — Did the President fail to consider important evidence or mitigating circumstances?
Whether the decision was arbitrary — Was the decision so unreasonable that no reasonable person would have made it?
Whether there was undue delay — Did the President take an unreasonably long time to decide the petition, causing mental torture to the convict?

What Courts CANNOT Review

The merits of the decision — Courts cannot substitute their own opinion for the President's. If the President rejected a mercy petition after proper consideration, the court cannot say "we would have granted it."
The adequacy of reasons — The President is not required to give detailed reasons for rejecting a mercy petition. A simple rejection is sufficient.
Comparative justice — Courts cannot compare one mercy petition with another and say that since one convict was pardoned, another should also be pardoned.

This limited judicial review strikes a delicate balance between executive autonomy and constitutional accountability. It ensures that the President's mercy power is not abused while respecting the separation of powers between the executive and the judiciary.

Article 72 and the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Criminal Procedure Code (CrPC) 1973, has introduced significant changes to the mercy petition process. Section 472 of BNSS now governs how mercy petitions are filed and processed, particularly in death sentence cases. Here are the key changes:

Time Limit for Filing: Under BNSS Section 472(1), a convict must file a mercy petition within 30 days from the date the jail Superintendent informs them about the dismissal of their appeal, review, or special leave petition by the Supreme Court, or the confirmation of the death sentence by the High Court.
Joint Petitions: If there are multiple convicts in a case, all of them must file their petitions within 60 days.
Centre's Role: The Central Government must seek comments from the State Government and make recommendations to the President within 60 days of receiving the mercy petition.
Finality of Decision: BNSS Section 472(7) states that the President's decision on mercy petitions is final and cannot be questioned in court.
Communication: The Central Government must communicate the President's order to the State Government and jail authorities within 48 hours.

These provisions aim to bring speed and certainty to the mercy petition process, which was previously criticized for being slow and opaque. However, the provision making the President's decision "final" and immune from court challenge has raised concerns about whether it infringes on the basic structure of the Constitution, particularly the power of judicial review.

Practical Significance of Article 72 for Law Students and Judiciary Aspirants

If you are preparing for judicial services exams, UPSC law optional, or state public service commissions, Article 72 is a topic you simply cannot ignore. Here is why it matters:

Constitutional Law Paper: Article 72 is a favorite question in constitutional law papers. Examiners often ask about the scope of the President's pardoning power, the difference between pardon and commutation, and the grounds for judicial review.
Human Rights Law: The intersection of Article 72 with Article 21 (Right to Life) and Article 14 (Right to Equality) is a hot topic in human rights law. Cases like Shatrughan Chauhan have made this intersection even more relevant.
Criminal Law: Understanding mercy petitions is essential for criminal law practitioners, especially those handling death penalty cases. The procedural aspects under BNSS Section 472 are now part of the criminal procedure syllabus.
Comparative Constitutional Law: Article 72 is often compared with the pardoning powers of the US President (Article II, Section 2) and the British monarch. Understanding these comparisons gives you an edge in competitive exams.
Current Affairs: Mercy petitions are frequently in the news. Staying updated on recent mercy petition decisions helps in essay writing and interview preparation.

Frequently Asked Questions About Article 72

Here are some of the most common questions students and legal professionals ask about Article 72:

Can the President grant a pardon before conviction?

This is a tricky question. The text of Article 72 says the President can grant pardons to "any person convicted of any offence." A plain reading suggests that conviction is a prerequisite. However, some courts have held that the power can be exercised even before conviction, drawing parallels with the US President's power. The safer and more widely accepted view is that conviction is required before Article 72 can be invoked.

Can a mercy petition be filed more than once?

Technically, there is no legal bar on filing multiple mercy petitions. However, successive petitions without new grounds are usually not entertained. The Supreme Court has held that repeated mercy petitions can be rejected if they do not raise new facts or circumstances. In some cases, the Court has even imposed costs on petitioners who file frivolous repeated petitions.

Does the President need to give reasons for rejecting a mercy petition?

No. The President is not required to give detailed reasons for rejecting a mercy petition. This is one of the criticisms of the current system — the lack of transparency. However, the Supreme Court has suggested that providing brief reasons would enhance the fairness and credibility of the process.

Can a pardoned person be tried again for the same offence?

No. A full pardon blots out the conviction, and the person cannot be tried again for the same offence. This is based on the principle of double jeopardy under Article 20(2) of the Constitution. However, the pardon does not erase the fact that the offence was committed — this fact can still be considered in subsequent proceedings for determining character or eligibility.

What happens if the President does not decide a mercy petition for years?

Under the Shatrughan Chauhan judgment, undue delay in deciding a mercy petition is a valid ground for commutation of the death sentence to life imprisonment. The Supreme Court has held that such delay causes mental torture and violates the right to life under Article 21. However, there is no fixed time limit — the Court decides on a case-by-case basis whether the delay is "inordinate."

Can the President pardon a person convicted of terrorism?

Yes, in theory. Article 72 does not exclude any category of offence. However, in practice, mercy petitions in terrorism cases are rarely granted due to the gravity of the offence and national security concerns. The President and the Council of Ministers would consider factors like the nature of the crime, its impact on society, and the likelihood of recidivism before making a decision.

Conclusion: Article 72 as a Constitutional Safeguard

Article 72 of the Indian Constitution is much more than a legal provision — it is a constitutional safeguard that ensures justice is tempered with mercy. In a country where the death penalty still exists and thousands of people languish in prisons, the President's pardoning power serves as a vital check on the judicial system. It corrects possible errors, shows compassion in deserving cases, and upholds the dignity of every individual, even those who have committed the most serious crimes.

However, Article 72 is not a blank check for the executive. The Supreme Court has ensured through landmark judgments that this power is exercised fairly, transparently, and without arbitrariness. Judicial review, though limited, provides a crucial safety valve against executive overreach. The introduction of BNSS Section 472 has brought more structure to the mercy petition process, though concerns about the finality clause remain.

For law students, judiciary aspirants, and legal professionals, mastering Article 72 is essential. It connects constitutional law, criminal law, human rights, and administrative law in a way that few other provisions do. Whether you are writing an exam, arguing a case, or simply trying to understand how the Indian justice system works, Article 72 offers profound insights into the balance between justice and mercy that lies at the heart of any civilized society.

If you found this guide helpful, make sure to explore our other constitutional law articles on Barristery.in. We are committed to making Indian law accessible, understandable, and actionable for every citizen, student, and legal professional. From Article 52 (the President's office) to Article 161 (the Governor's pardoning power), our comprehensive guides cover every corner of the Indian Constitution in simple, human language.

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Last Updated: July 2026 | Article Published on Barristery.in

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AUTHOR: RABI KR. PANDIT

Hello, I am Rabi Kr. Pandit, the founder of this platform and a resident of Kolkata, India. I hold a degree in History, Political Science, and English, and I am currently pursuing my legal studies at Jogesh Chandra Chaudhary Law College under the University of Calcutta. I manage multiple educational blogs with the aim of delivering knowledge in a clear, structured, and accessible manner. My focus is on simplifying complex topics and presenting reliable information that benefits students and readers from diverse academic backgrounds.

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