The Pardoning Powers of the President: Is it Subject to Judicial Review?


When the Indian Constitution was drafted, a special power grant to the President i.e., Pardoning Power. This power is grant to clemency to accused or convicted persons in certain criminal cases. While this power is furnished to the President to eliminate administration of the criminal law.[1] There are many questions arose from this power, whether is it subject matter of Judicial Review or is it absolute power and other few questions.


A Pardon is a government decision allows a person to be absolved or acquitted of guilt for an offence and crime for which he is convicted, as if the act never occurred. A Pardon completely absolves the offender from all the sentences or punishments or charges imposed on him and places him in the same position as if he had never committed the offence. The Pardoning Power can be exercised before or after the conviction for the offence, depending upon the jurisdiction.[2]


In Indian Constitution, Pardoning Power of the President elucidated in Article 72, which states that: “The President shall have 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.”[3] The meaning of these words as follows:

  • Pardon – Completely absolve the offender and restore his position as the act never committed by him.
  • Commutation – Exchange of one thing for another. It means substitution of one form of punishment for another.
  • Remission – Reduction of punishment without changing its nature or character.
  • Reprieve – Temporary suspension of death sentence.
  • Respite – Awarding a lesser punishment on some special grounds.

The President can grant this power in three cases:

  1. Punishment or sentence by Court Martial;
  2. An offence against any law relating to a matter to which the executive power of the union extends;
  3. In all cases where the sentence is a sentence of death.

In America, the President can grant pardon for offence against United States, except in cases of impeachment. India had the same powers of pardon both in nature and its effect as King of Britain and the President of United States. The Pardoning Power of President in India can be exercised before, during, or after trial. Power to pardon in Indian is an executive power and it is not an absolute power. In Maru Ram v. Union of India[4], it was held that the power to pardon is exercised by the President on the advice of the Council of Ministers.

In case of Kehar Singh v. Union of India,[5] the scope of pardoning power discussed in detail. The accused presented a petition to the President for grant pardon. The President rejected his plea on the advice of Council of Ministers. In this case, the court held that while exercising the power of pardon it was depend upon the President to critically analyse the evidence and came with the different conclusion both guilt of accused and sentence imposed upon him, but during analyse the evidence the President does not amend, modify or replace Judicial Record. The Judicial Record remains complete or intact. The Court cannot issue the guidelines for Pardoning Power of the President because the power Article 72 is of the “Widest Amplitude”. The President cannot be asked for his order. The pardoning power is discretionary power because power to grant pardon to accused or offender is depend upon the discretion of the President. While exercising his pardoning power, the President used his power reasonably, fairly, cautiously in appropriate cases because “the power of clemency nit unbridled.”

In case of Sher Singh v. State of Punjab[6], Chandrachud, C.J., said, “A self-imposed rule should be followed by the executive authorities vigorously, that every such petition shall be disposed of within a period of three months from the date when it is received. Long delays in the disposal of these petitions are a serious hurdle in the disposition of justice and indeed, such delay tends to shake the confidence of the people in very system of justice.”[7]


In Epuru Sudhakar v. Government of Andhra Pradesh[8], the Court held that the pardoning power of the President under Article 72 of the Constitution is subject to the Judicial Review. The pardoning power of the President cannot be exercised on the basis of the caste, religious, or political reasons. If the pardoning power exercised on the ground of political reasons, religious or caste considerations’ it would amount to the violation of the Constitution and the Court will examine its validity.[9]

In case of Kuljeet Singh v. Lt Governor of Delhi, the Court held that the exercise of Pardoning Power elucidated under Article 72 will be examined on the facts retained the judicial review on a matter which has been vested by the Constitution solely in the Executive[10].

The court cannot exercise the power of review merely on the ground of delay in disposing of the mercy petition. The Court’s power of judicial review in such matter is very limited. The Court can review only when the decision can be found to be without application of mind to the relevant factors or irrelevant consideration or is damaged due to the mala fides or the power is used for arbitrariness.

Recently, the mercy petition of Akshay in Nirbhaya Case was rejected by the President. His petition also rejected once. The President Pratibha Patil also granted 30 Pardons till 2012.[11] There were many cases where pardons granted to accused and there were also some cases where their petitions were rejected by President.

[1] (last visited on 26th may 2020)

[2] (last visited on 25th may 2020)

[3]  The president…offence, The Constitution of India

[4] (1981) 1 SCC 107

[5] AIR 1989 SC 653

[6] AIR 1983 SC 361

[7] PANDEY J.N. 56th Edition, 2019

[8] AIR 2006 SC 3385

[9] PANDEY J.N. 56th Edition, 2019

[10] last visited on 27th May, 2020

[11] last visited on 28th May,2020

This Article is authored by Nishu Singh, 2nd Year, BA.LL.B  Student of Jagannath Institue of Management Science (JIMS).

Also Read: How Independent Is Indian Juriciary?

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