The pardoning power of the President and the Governor (Articles 72 and 161)
LUG-104 Constitutional Law-I, Unit V: Powers of the President and Governor to grant pardons, etc. (Articles 72 & 161). · LLB · 60 min
Articles 72 and 161 give the President and the Governors the power to grant pardons, reprieves, respites and remissions and to suspend, remit or commute sentences. This lecture explains the five forms of clemency, the three heads of the President's power (court martial, Union-law offences, death sentence), the narrower power of the Governor, the statutory powers under sections 432-435 CrPC (now sections 473-477 BNSS 2023), and the case law on the nature and judicial review of the power: Maru Ram, Kehar Singh, Epuru Sudhakar, Shatrughan Chauhan, Sriharan and Perarivalan. It ends with the American and British comparison the examiner expects.
Objectives
- Explain the five forms of clemency and distinguish pardon from commutation, remission, respite and reprieve.
- Compare the scope of Article 72 with Article 161: court martial, Union-law offences and the death sentence.
- Explain, with Maru Ram and Kehar Singh, that the power is exercised on ministerial advice, that no hearing is required and that the President may re-examine the evidence.
- Apply Epuru Sudhakar and Shatrughan Chauhan to decide whether a clemency order can be judicially reviewed and on what grounds.
- Relate the constitutional power to the statutory powers of remission under the CrPC/BNSS and to the Sriharan and Perarivalan decisions.
Slides
- What Articles 72 and 161 say
- Pardon, commutation, remission, respite, reprieve
- Scope: President v. Governor
- Nature of the power: Maru Ram v. Union of India (1981)
- Scope on the merits and procedure: Kehar Singh v. Union of India (1989)
- Judicial review: Epuru Sudhakar v. Government of Andhra Pradesh (2006)
- Delay and Article 21: Shatrughan Chauhan v. Union of India (2014)
- Statutory remission, Sriharan and Perarivalan
- Comparison with the United States and the United Kingdom
- How the examiner asks it
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