Pardoning Power Unveiled: Navigating Article 72 and 161 in Presidential and Government Authority

by Gargi Sanadhya, a student of Symbiosis Law School,NOIDA

The Indian Constitution grants the President and state governors the power of pardon under Articles 72 and 161, respectively. Article 72 allows the President to pardon, reprieve, or commute sentences, exercising discretion while requiring consultation with the Council of Ministers. Judicial review, exemplified in cases like Kehar Singh v. Union of India and Epuru Sudhakar v. Government of Andhra Pradesh, ensures the President’s authority remains within constitutional bounds. Similarly, Article 161 empowers governors to pardon state offences, with discretion and consultation mandates akin to the President’s, and subject to judicial review.

Despite its significance in maintaining justice system flexibility, the pardon power faces criticism for potential abuse or political motives. Accountability, transparency, and judicial oversight are essential to prevent misuse. Striking a balance between executive clemency’s necessity and its potential for abuse shapes India’s approach to justice. The ongoing discourse on pardon power highlights the need for continuous efforts to align the executive with democratic ideals and the rule of law, emphasising the dynamic nature of governance.

One of the most powerful and controversial aspects of the executive authority of many countries—perhaps even more so than India—is the pardon power. The President of India and state governors are granted the authority to pardon and grant respite, respectively, under Articles 72 and 161 of the Indian Constitution. With this power, they can decide whether to impose lighter sentences, give more clemency, or completely free those found guilty of different crimes. Deciphering the complex interplay between mercy and justice within the larger context of government requires a nuanced grasp of these constitutional principles.

According to Article 72 of the Indian Constitution, the President can pardon, reprieve, respite, or remit punishment. He can also suspend, remit, or commute the sentence of any individual found guilty of any crime. This authority, which enables the head of state to interfere in the legal system to prevent alleged injustices, is a reflection of the idea of executive clemency. Although the President’s authority under Article 72 is discretionary, meaning it is not constrained by the Council of Ministers’ advice, it still requires their involvement. This special combination of consultation and discretion aims to achieve a balance between the necessity of a democratic and accountable government and the requirement for executive clemency.

The President’s great authority is not unqualified, though. The judiciary is still able to examine and monitor how this power is used, making sure that it doesn’t become arbitrary or go against the values of the constitution. The definition of the President’s authority under Article 72 has been greatly aided by seminal instances like Kehar Singh v. Union of India and Epuru Sudhakar v. Government of Andhra Pradesh.

Article 161: Pardon by the Governor

Article 161, which is similar to Article 72, gives the governors of Indian states the power to pardon, reprieve, respite, or remit punishment. They can also suspend, remit, or commute the sentence of any individual found guilty of any state-mandated infraction. Article 161 gives the Governor discretionary authority, which is used in accordance with the Council of Ministers’ advice.

The Governor may pardon only crimes that violate state laws; crimes that fall under federal authority are not included in this range. The Governor’s use of this authority is susceptible to judicial scrutiny, just like that of the President, to guard against misuse and guarantee adherence to constitutional values.

Controversies

Although it is essential to preserving the justice system’s flexibility, the pardon power is not without criticism. Its detractors claim that it might be easily abused or motivated by political reasons. Pardons of well-known people or those with political ties have occasionally sparked public outrage and prompted concerns about the executive branch’s independence.

Because of the precarious balance that must be struck between the necessity of presidential clemency and the possibility of abuse of this authority, accountability, openness, and judicial supervision are crucial. Maintaining the constitutional values of justice, equality, and fairness depends on finding the correct balance.

The careful balance between justice and mercy in the domain of executive authority must be preserved by carefully considering the rules guiding its use, as well as by judicial review and public education. India’s approach to justice will be shaped by how these constitutional principles are interpreted and used as the country develops, guaranteeing a just and equal judicial system for all.

Recognizing the Presidential Pardon under Article 72

The President of India may pardon, reprieve, respite, or remit punishment as well as suspend, remit, or commute the sentence of anyone found guilty of any crime, according to Article 72 of the Indian Constitution. The broader constitutional framework includes this executive clemency award to serve as a check on court rulings and a safety net for extraordinary situation

Discretion and Consultation

One unique aspect of the President’s authority under Article 72 is its discretionary nature. It suggests that when using this power, the President is not constrained by the Council of Ministers’ recommendations. Nonetheless, the clause requires that the Council of Ministers be consulted. The goal of this dual structure is to preserve a balance between the executive branch’s collective expertise and the President’s individual judgement.

The necessity for consultation makes sure that the pardon power is not used randomly and is instead the topic of a more extensive debate within the administration. It is consistent with the tenets of parliamentary democracy, which state that choices made by the executive branch should represent the will of the legislature.

Judicial Review and precedents

Although the authority is discretionary, it is not unqualified. The judiciary is still able to examine the President’s use of mercy through judicial review. The Supreme Court ruled in the historic Kehar Singh v. Union of India decision that the President’s authority is susceptible to judicial review and may be declared unlawful if it is determined to be capricious, discriminatory, or mala fide.

The Supreme Court emphasised the need of using the pardoning power wisely in the case of Epuru Sudhakar v. Government of Andhra Pradesh. The President must use independent judgement and refrain from acting robotically or in response to outside pressure, the court said.

These legal rulings create a framework for oversight to stop abuse or capricious use of clemency, acting as benchmarks for the President’s use of his authority.

Comprehending Governor’s Pardon Article 161

The Indian Constitution’s Article 161 gives state governors the same pardoning authority. There are certain noticeable differences, such as the extent of violations and the jurisdiction of the Governor’s authority, even though the overall structure is similar to that of Article 72.

Restricted Scope and State Offences: The Governor’s power under Article 161 is restricted to violations of state laws, as opposed to the President’s power, which is applicable to violations of any law. This distinction is essential because it guarantees that the Governors stay out of areas that belong to the federal government.

By keeping the scope limited to state offences, the federal-state system is kept in balance and governors are kept from interfering in areas outside of their constitutional jurisdiction.

Discretion and Consultation

Similar to the President, the Governor’s power is discretionary. The Governor is not bound by the advice of the Council of Ministers but is expected to exercise this power based on their independent judgement. Again, the provision mandates consultation with the Council of Ministers, ensuring a collective decision-making process.

This dual structure acknowledges the importance of both individual discretion and collective responsibility in the exercise of the pardoning power by the Governor.

Judicial Review: The Governor’s use of the pardoning authority granted by Article 161 is subject to judicial review, just like the President’s authority. In order to ensure that this authority is in line with constitutional norms and provides protection against arbitrary measures, the judiciary acts as a check on potential misuse.

Disputations and Obstacles

Despite being a crucial component of the legal system, the pardon power has not been without controversy. Events involving the pardoning of well-known people or those with political ties have spurred discussions about the possible abuse of this power.

Conclusion

The ability to pardon, as bestowed by Articles 72 and 161 of the Indian Constitution, is a subtle facet of executive power that is vital to preserving the precarious equilibrium between justice and mercy. This power’s discretionary nature, together with the requirements for judicial review and consultation, are meant to thwart arbitrary use and political manipulation. The way that India views justice will continue to be shaped by how these constitutional provisions are interpreted and used as the country develops. A just and equitable legal system that preserves constitutional values is ensured by striking a balance between the necessity of executive clemency and the possibility of its abuse. The ongoing discussion surrounding the use of the pardoning power serves as a reminder of how dynamic government is and how constant work is needed to bring the executive branch into compliance with the rule of law and democratic ideals.