Clemency

What is Clemency?

**Clemency** refers to the constitutional power vested in the head of state — the **President of India** at the central level and the **Governor of a State** at the state level — to show mercy towards a person convicted of a criminal offence. This power allows the executive to grant pardons, commute sentences, grant reprieves, respites, or remit punishments, either wholly or partially. Clemency serves as a safety valve in the justice system, recognising that rigid application of law may sometimes produce unjust outcomes and that compassion has a legitimate place in governance.

In plain language, clemency is the government's power to reduce or forgive a person's punishment, even after courts have passed a final sentence.

Legal Framework

Article 72 — Power of the President

**Article 72 of the Constitution of India** grants the President the 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:

- **(a)** In all cases where the punishment or sentence is by a **court martial**.

- **(b)** In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the **executive power of the Union extends**.

- **(c)** In all cases where the sentence is a **sentence of death**.

The President's power under Article 72 is the broadest — only the President can pardon a death sentence.

Article 161 — Power of the Governor

**Article 161 of the Constitution** grants the Governor of a State the 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 against any law relating to a matter to which the **executive power of the State extends**.

Notably, the Governor **cannot** pardon a death sentence — this power is exclusive to the President. Additionally, the Governor has no power over court martial sentences.

Types of Clemency

Indian constitutional law recognises five distinct forms of clemency:

1. **Pardon:** Complete forgiveness of the offence, conviction, and sentence. The person is treated as if the offence never occurred. Both punishment and disqualifications are removed.

2. **Commutation:** Substitution of one form of punishment with a lesser form — for example, replacing a death sentence with life imprisonment, or life imprisonment with a term of years.

3. **Remission:** Reduction in the period of sentence without changing its character — for example, reducing a 14-year sentence to 7 years.

4. **Respite:** Awarding a lesser sentence in place of the prescribed one due to special circumstances — such as the physical disability or pregnancy of the convict.

5. **Reprieve:** A temporary stay or postponement of execution of a sentence, particularly a death sentence, to allow the convict time to seek pardon or for other proceedings.

When Does This Term Matter?

Death Penalty Cases

Clemency is most critical in cases involving the **death sentence**. After the Supreme Court upholds a death sentence, the convict's last legal remedy is a **mercy petition** to the President under Article 72. The President acts on the aid and advice of the Council of Ministers under **Article 74(1)**, and the Home Ministry processes the petition. Several high-profile death row cases — including those of Afzal Guru, Yakub Memon, and the Nirbhaya case convicts — have involved extensive clemency proceedings.

Delay in Execution

The Supreme Court has held that unexplained and inordinate delay in disposing of a mercy petition is a ground for commuting a death sentence to life imprisonment. In **Shatrughan Chauhan v. Union of India (2014) 3 SCC 1**, the Court commuted the death sentences of several convicts whose mercy petitions had been pending for years, holding that such delay constitutes mental torture violating Article 21.

Judicial Review of Clemency

The President's and Governor's clemency powers are not immune from judicial review. In **Maru Ram v. Union of India (1981) 1 SCC 107**, the Supreme Court held that the clemency power must be exercised on the aid and advice of the Council of Ministers and is subject to judicial review on limited grounds:

- The order is passed without application of mind.

- The order is mala fide (in bad faith).

- The order is based on wholly extraneous or irrelevant considerations.

- Relevant material is not considered.

- The order is arbitrary.

In **Epuru Sudhakar v. Government of Andhra Pradesh (2006) 8 SCC 161**, the Supreme Court further clarified that clemency decisions can be reviewed if they are based on political considerations unrelated to the case.

Prisoners Serving Long Sentences

Beyond death penalty cases, clemency is relevant for prisoners serving life imprisonment or long sentences. State governments periodically consider remission for well-behaved prisoners under **Sections 432-433 CrPC** (now **Sections 473-474 BNSS**), and the Governor's power under Article 161 supplements these statutory provisions. Many states have premature release policies that operate alongside constitutional clemency powers.

Practical Examples

Mercy Petition Process

A death row convict files a mercy petition addressed to the President through the jail superintendent. The petition is forwarded to the Home Ministry, which seeks the opinion of the concerned State Government. After considering all materials — including the trial court judgment, High Court confirmation, Supreme Court decision, and any special circumstances — the Home Ministry prepares a recommendation for the President. The President acts on the Council of Ministers' advice.

Governor's Clemency in State Offences

For offences under state laws (such as excise offences, state gambling laws, or certain land revenue offences), the Governor exercises clemency power. A convict sentenced under the Maharashtra Prohibition Act, for instance, would petition the Governor of Maharashtra for remission or pardon.

Mass Remissions on National Occasions

The central and state governments periodically announce **special remission** for certain categories of prisoners on occasions like Republic Day and Independence Day. These remissions — though technically under Sections 432-433 CrPC rather than Articles 72/161 — operate as a form of executive clemency and follow guidelines issued by the government regarding eligible categories (such as women prisoners, elderly convicts, or first-time offenders who have served a minimum period).

Frequently Asked Questions

Can the President pardon someone before conviction?

Article 72 specifically refers to a person "convicted of any offence." Therefore, the President's clemency power can only be exercised after conviction. Unlike the U.S. presidential pardon power, the Indian President cannot pre-emptively pardon someone before trial or conviction.

What is the difference between clemency under Article 72 and remission under CrPC?

Article 72 (and Article 161) grants constitutional clemency power to the President and Governor respectively — it is an executive sovereign act. Sections 432-433 CrPC grant the "appropriate government" (State or Central) the power to suspend or remit sentences — this is a statutory power. The constitutional power is broader and cannot be restricted by statute. In **Maru Ram v. Union of India**, the Supreme Court clarified that Article 72/161 powers supplement and override the statutory powers under CrPC.

Can a clemency decision be challenged in court?

Yes, but on limited grounds. The Supreme Court has held that while clemency is an executive prerogative, it is subject to judicial review if the decision is arbitrary, mala fide, based on irrelevant considerations, or if there has been inordinate delay. Courts do not sit in appeal over clemency decisions but can review the decision-making process.

Has the President ever rejected a mercy petition in India?

Yes, several mercy petitions have been rejected. Notable rejections include those of Afzal Guru (convicted in the 2001 Parliament attack case), Ajmal Kasab (convicted in the 2008 Mumbai attacks), and the four convicts in the 2012 Nirbhaya gang rape case. In each of these cases, the President rejected the mercy petition after which the death sentence was carried out.