The clemency power or the pardoning power of the President of India is a
Constitutional scheme, which is given with the aid and advice of the Council of
Minister. Indian Constitution has not provided any provisions for checks on the
exercise of clemency power exercised by the President.
The sentiments of the
general public for harsher punishment for criminals in cases where offences are
punished by capital punishment have attracted the clemency process. The
researcher has discussed the clemency power of the President, and also about,
can the President investigate evidence of the case by exercising its clemency
Clemency in layman's language or term means showing mercy to an offender.
Clemency power is with President or Governor and is given under Articles 72 and
161 of the Constitution of India. Article 72 gives power to the President to
grant pardon, respite, reprieve, remission of punishments or commute the
sentence of any person convicted of any offence. The pardoning power of the
President is not absolute because they have to take the aid and advice from the
council of ministers.
When the President is exercising is power of mercy
jurisdiction, there is no mechanism which is provided to us in the Constitution
of India where we can question the legality of the decision made by him. The
Governor of each state has been given the clemency power for only minor offences
whereas President has the power to grant a pardon and reduce the punishment for
major offences and for offences committed in union territories.
The purpose of
granting pardon is to save the innocent person from being punished in cases of
doubtful conviction or due to miscarriage of justice. It is always said that it
is preferable to grant liberty to a guilty offender rather than sentencing an
Objective of Study:
One of the biggest issues related to clemency powers or the pardoning powers of
the President of India is that does he have the power to investigate the
evidence of the case while exercising his power. Thus, a need to take this study
to find out does he have the power or not to investigate evidence. The paper
aims at listing out all the powers which the President has been given under
Article 72 of the Constitution of India as Pardoning power.
- In Case of Clemency Powers, Can President Investigate Evidence?
The researcher has used doctrinal method i.e., reference from available primary
sources like Acts, Rules and Regulations to study the present questions in hand.
The researcher has also taken reference from secondary sources like books,
articles and newspaper reports to understand the issue regarding the clemency
powers of president.
In case of clemency powers, can President investigate evidence?
The President of India has been given clemency powers under Article 72 of the
Constitution of India. This article gives the power to the President to grant
pardons, respites, reprieves, or remissions of punishment or to suspend, remit
or commute the sentence of any person convicted of any offence related to cases
of death sentence or the cases where the punishment is for an offence against
any law relating to a matter to which the executive power of the union extends,
or the cases where the Court Martial has given the Punishment.
The clemency powers can be exercised by the President only when the person is
convicted of an offence and not before or without such conviction. The power
cannot be exercised even when the person is convicted of an offence, but an
appeal is pending against such conviction. The President can also grant the
following things such as, he can reprieve the person which means a temporary
suspension of the punishment fixed by law; respites the person which means
postponement to the future the execution of a sentence; commutation can be given
to the person which means changing the punishment to one of a different sort
than that originally proposed, and a person can be given remission which means
to reduce the amount of punishment without changing the character of
In Shatrughan Chauhan v. Union of India
(2014), the Supreme Court has given the
rationale for refusal to frame guidelines for the exercise of clemency power of
President and Governor under Article 72 and 161 of the Constitution of India. It
was held that there is a presumption that the authority act with due application
of mind; and considering the nature of power given under the articles, it is
necessary to follow specific guidelines. They give decisions with the aid and
advice of the Home Minister.
The court has also laid down in certain cases that the power under Articles 72
and 161 of the Constitution of India have to be exercised with great care and
caution and is subject to judicial review.
The President under Article 72 has the power to go into the merit of the case
and investigate evidence. He will give the decision with the aid and advice of
the council of ministers.
Under Article 72 the President while exercising the power can go into the merit
of the case notwithstanding that it has been judicially concluded by the
consideration given to it by the Supreme Court.
This article gives the power to
the President to investigate the evidence of the case and to decide whether this
case is one deserving to grant a pardon falling within his power. On the
basis of the evidence, the President can come to different conclusions as given
by the court with regard to the guilt of, and sentence imposed on the accused.
The President while exercising such right under this Article cannot modify,
amend, or supersede the judicial record which remains intact and undisturbed.
In the case of Kehar Singh v. Union of India
Kehar Singh was convicted for the offence of criminal conspiracy under Section
120B of Indian Penal Code read with Section 302 (Punishment for death) in
connection with the assassination of Smt.Indira Gandhi. He was sentenced to
death by the learned Additional Session Judge of New Delhi. An appeal was filed
before the High Court and was dismissed by the Court. An appeal by special leave
petition was filed by Kehar Singh in Supreme Court against his conviction and
sentence of death, which was dismissed by the Supreme Court, later a review
petition was filed by him which was also dismissed by this court, and after that
a writ petition was filed by him which was also dismissed by this court.
Later a petition was presented before the President of India by Rajendra Singh's
son under Article 72 of the Constitution for granting pardon. Kehar Singh's
lawyer wrote to the president, presented the case, and asked for an opportunity
to hear on the matter. The President dismissed the petition (November 24, 1988)
and Kehar Singh was informed of the dismissal of the petition.
On December 1, 1988, a petition was filed with the Delhi High Court seeking an
order prohibiting the defendant from executing the death penalty, but the High
Court rejected the petition. After that Special Leave Petition before Supreme
Court was filed, and after receiving the petition, the Court accepted the writ
petition and for the time being decided to stop the execution (order for the
same was passed).
The Court with respect to Article 72 has said that this article falls within
their area and they can examine such decision of President by way of judicial
review. The court also held that the President has the power to go into the
merits of the case and the decisions given by him can be called for judicial
review if it is falling within the strict limitation defined in the Maru Ram
One the issue was whether the petitioner is entitled to an oral hearing from the
President on his petition invoking the powers under Article 72. The Court with
respect to how the petition should be considered has said that President has the
discretion to decide the manner in which the petition should be considered, and
petitioner here will have no right and they can also not insist before the Court
that they will be presenting an oral argument before them with respect to that
petition. The Court also said that it is for President to decide how best he can
acquaint himself with all the information and evidence necessary for the
disposal of the case.
The Court with respect to how the petition should be considered has said that
President has the discretion to decide the manner in which the petition should
be considered, and petitioner here will have no right and they can also not
insist before the Court that they will be presenting an oral argument before
them with respect to that petition
The Supreme Court said that under article 72 the power should be construed in
the widest possible manner without the court interfering to lay down the
guidelines of any sort and the court went on to say that this power may be
exercised to correct judicial errors and for reason of state.
Judicial error is a situation when the court has not taken or looked into the
matter which is important for the case and the evidence which they have missed
is important for the accused to get acquitted. Here the slightest mistake by the
court can destroy the life of the accused and can land him in jail. So when
these type of situations arises, the President on the request of the accused
side can look into the matter if he deems fit and on the basis of that he can go
into the merit of the case and can investigate the evidence and if on the basis
of the evidence he gathers that the person is not guilty of the offence, he can
grant pardon with the aid and advice of the council of minister.
For instance, if the accused is guilty of murder but has been charged and
convicted for culpable homicide not amounting to murder because the court has
not properly looked into the evidence. Here they have done an error because of
which the accused had been sentenced to lesser punishment.
In the case of Maru Ram, the Supreme Court has said that the order passed by
the President should not be mala fide, or shall never be exercised arbitrarily,
or the relevant matter are kept out of consideration. If the decisions are based
on the basis of these then the court has the power to judicially review the
In the case Yakub Abdul Razak Memon, the accused was convicted for his
involvement in Mumbai serial blast case in 1993 by the Special Terrorist and
Disruptive Activities Court in July 2007. He filed a mercy petition before the
governor of the Maharashtra but was denied and the court held that since his
crime are of such a nature, and he is involved in so many activities his
punishment should not be reduced and should be given death penalty as an example
In the Maru Ram case
, the Supreme Court also held that President under Article
72 must not exercise the power on their own, but they should act with the aid
and advice of council of minister. 
To conclude it can be seen that President has been given the power to pardon
under Article 72 of the Constitution of India. He can go into the merit of the
case and can investigate evidence. President decision can be reviewed by the
court only when he has not given the decision fairly, or has given a mala fide
decision, or has not considered the relevant matters. The President give
decision with the aid and advice of council of minister.
The pardoning power
should not be absolute, and the judiciary should not interfere too much in the
pardoning power. If this power is used properly and misused, then it will
certainly prove to be beneficial for the accused as well for the society.
Acts/ Regulations/ Rules Referred:
- Constitution of India
- V.N. Shukla's, Constitution of India.
- M.P. Jain, Indian Constitutional Law.
- Dr Suresh V. Nadagoudar and Sanjeeve Gowda.G.S., Presidential power to pardon
Written By: Samyak Lunia,
- V.N. Shukla's, Constitution of India, Thirteenth Edition, (2016
- M.P. Jain, Indian Constitutional Law, Eighth Edition, (2018).
- Shatrughan Chauhan v. Union of India, (2014) 3 SCC 191.
- Dr Suresh V. Nadagoudar and Sanjeeve Gowda.G.S., Presidential power to
pardon in India.
- Maru Ram v. Union of India, AIR 1981 SC 107.
- Kehar Singh v. Union of India, AIR 1989 SC 653
- Yakub Abdul Razak Memon v. State of Maharashtra, through CBI, Bombay, 2013.
- Supra 5.
4th Year BBALLB Student at Bennett
University, Greater Noida