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I have always found that mercy bears richer fruits than strict justice.

– Abraham Lincoln, 16th U.S President.[1]

The significance and requirement for mercy have been a controversial topic for decades. The power of pardon can be seen as the archaic survivor of an obsolete era where the ruler was contemplated as a god having authority over the lives and death of his people. Apparently, the power evolved with certain guidelines and limitations in order to sustain systematic governance and delivery of justice. During the British Raj over the subcontinent of India, the law of pardon was governed under section 295 of the Government of India act 1935. This was similar to the practice in England where the sovereign has unlimited power. Evidently, with the help of the Supreme Court’s guidance and interpretations, the unbridled power of the executive has come under the ambit of Judicial Review. The present status of the pardoning power cannot be considered as a matter of right, rather it is an act of grace and leniency.

General definitions

  1. Pardon: It means to remove all the convictions and punishments completely.
  2. Commutation: It means to substitute one form of punishment with another. For instance, rigorous imprisonment may be substituted with simple imprisonment.
  3. Remission: It involves the process of reducing the time period of a punishment without changing its form.
  4. Respite: It means to reduce the sentence upon the existence of extra-ordinary facts like physical disability, etc,
  5. Reprieve: It means to stay in the execution of a sentence for a temporary period. The purpose of this is to provide reasonable time to the convict to seek pardon or any other process.
Comparison between the pardoning powers of President and Governor

The pardoning power of both the executive heads of the centre and the state can be differentiated in the following ways:

  1. President is entitled to grant pardon to the punishments ordered by Court Martial, whereas Governor is not.
  2. President’s pardoning power extends to the cases where the death sentence is awarded whereas no such power resides with the Governor.
  3. President is entitled to exercise judicial powers for punishments provided under the laws made by the Union[2] while the Governor can exercise its pardoning power for the punishments provided under the laws made by the state[3] concerned.

Case Overview

In the case of the State of Haryana v. Raj Kumar, the Supreme Court held that the power of the Governor to grant pardon overrides the provision of section 433A of CrPC. The power of the Governor to grant pardons, commute reprieve, respite and remission of the punishment awarded to the convict for any offence committed against the state laws is provided under Article 161 of the Indian Constitution.

Section 433A of CrPC reads:

Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.”

Despite the restriction provided under section 433A, the Supreme Court has held that the Governor of a state can grant pardon to prisoners, including death row ones, even if they have not served the required minimum imprisonment period of fourteen years. The court explained that the power to grant premature release of a convict who has undergone 14 years of imprisonment of actual imprisonment is vested with the appropriate government. On the other hand, where the convict has not undergone 14 years of imprisonment of the actual imprisonment, the Governor has the power to exercise its pardoning power or to suspend; remit or commute the sentence with the aid and advice of the State Government, notwithstanding the restrictions as provided under section 433A of CrPC. Therefore, the Constitutional power of the Governor is paramount against the restrictions provided under section 433A of CrPC.

The court further stressed upon the underlying fact that such clemency power under the hand of executive heads of both the states and the centre is the product of the collective effort of the Council of Ministers which is constitutionally provided. Meaning to say that President and Governor can’t act independently in order to exercise the provisions of Article 72 and 161 respectively, they have to act according to the aid and advice of their Cabinet Ministers. This was upheld by the Supreme Court in the cases including Maru Ram v. Union of India[4] in 1980, and Dhananjoy Chatterjee v. State of West Bengal[5] in 1994.


Law is not a static subject; it keeps transforming according to the needs and demands of the generation. As justice Bhagwati said, “Law cannot stand still; it must change with the changing social concepts and values. Law constantly is on the move adapting itself to the fast-changing society and not lag behind.”[6]

The executive pardon has been developing for ages along with the uncontrolled executive power. While upholding the constitutional power of the Governor (Article 161) against the limitation of the procedural act, section 433A CrPC, the power is also subject to judicial review in order to avoid or undo any injustice. Though it seems that judicial review restricts the objective of mercy petition, but where a court finds that the process of the decision taken by the President under Article 72 and Governor under Article 161 was reasonable and rational, the decision then cannot be interceded with. The person praying for mercy has exhausted all other legal and judicial processes, so the court, who has been asked to entertain a review petition against the executive pardon, should adjudicate according to the moral values rather than on legal circumstances. The Supreme Court through its various judgments has promulgated certain guidelines as to the pre-requisites that should be observed by the Executive while exercising power under Articles 72 and 161, but such guidelines are not exhaustive. Therefore, the judicial review stands in order to guarantee check and balance over the actions of the executive which upholds the basic structure doctrine of the Indian Constitution.

Author(s) Name: Anjali Vikram Singh (Graduate, Sharda University, Greater Noida)


[1] Joseph Gillespie, Harald And Torch Light, (Hagerstown MD, 15 March 1876).

[2] The Constitution of India 1950, Art. 73.

[3] The Constitution of India 1950, Art. 162.

[4] Maru Ram v Union of India [1980] AIR 2147, [1981] 1 SCR 1196.

[5] Dhananjoy Chatterjee v State of West Bengal [1994] 1 SCR 37, [1994] 2 SCC 220.

[6] National Textiles Workers Union v P.R. Ramakrishna [1981] 1 SCC 107, AIR [1981] SC 2239.

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