Article 72 Lets the President Pardon Any Death Sentence on the Ministers' Advice, and on 21 January 2014 the Supreme Court Commuted 15 of Them After Examining How Their Mercy Petitions Were Handled

Article 72 of the Constitution lets the President of India pardon a convict, delay a sentence, cut it short or swap it for a lighter one in every case where the sentence is death. Article 161 gives each state’s Governor a parallel power over offences against state law, and a convict on death row normally petitions the Governor first and the President second.

Both articles have been in force since 26 January 1950. For the President’s wider role, see what the President of India does.

What Articles 72 and 161 allow, in plain terms

Article 72(1) covers three kinds of case: every sentence passed by a court martial (a military court), every sentence for an offence against a law on a matter within the Union’s executive power, and every sentence of death. Clauses (2) and (3) protect the armed forces’ own power over court-martial sentences and the Governor’s power over death sentences. Article 161 covers a conviction under any law “relating to a matter to which the executive power of the State extends”.

Each verb has a set meaning. A reprieve postpones an execution for a fixed time, as the Supreme Court set out in Epuru Sudhakar (2006). Remission cuts the part of a sentence still to be served and leaves the conviction standing, in the words of an earlier ruling that Kehar Singh (1988) quotes. Commutation replaces a sentence with a lighter one, and section 474 of the current criminal procedure law lists death to life imprisonment as one of the swaps. A full pardon, in a US Supreme Court passage that Kehar Singh quotes, reaches both the punishment and the guilt.

None of these changes what the court decided. Kehar Singh says the President “acts in a wholly different plane” from the judges, and that the judicial record “remains intact, and undisturbed”.

Where the two powers came from

Nothing in the Government of India Act 1935 matched Article 161. Its section 295 gave the Governor-General, “in his discretion”, the powers of suspension, remission and commutation over death sentences passed in a province, according to the text the Supreme Court set out in Epuru Sudhakar.

The Constituent Assembly debated draft Article 59, now Article 72, on 29 December 1948 and adopted it that day, then reopened it on 17 October 1949 for a minor amendment. Draft Article 141, now Article 161, went through without debate on 1 June 1949, and on 17 October 1949 its scope was tied to the State’s executive power. One member wanted the Governor’s role in death cases deleted so that only the President would decide, the archive’s summary records. Offences against Union law fall to the President and offences against state law to the Governor, the Chairman of the Drafting Committee answered, with both holding power over death sentences. The draft kept existing practice, he said, in which pleas went to the Governor first and only rejected ones went on to the President.

Who actually makes the decision

The articles say “the President shall have the power”, yet a five-judge bench held in Maru Ram (11 November 1980) that the power is exercised by the Central and State Governments, “not by the President or Governor on their own”, and that the appropriate government’s advice binds the head of state. Article 74(1), as rewritten from 3 January 1977, says the President “shall, in the exercise of his functions, act in accordance with such advice”. Since 20 June 1979 the President may send the advice back for reconsideration, after which the President must act on the advice given. The Union executive explainer covers that rule. Article 163(1) puts Governors under their Council of Ministers in the same way, apart from the few functions the Constitution leaves to the Governor’s discretion.

In Shatrughan Chauhan (2014) the Court called the power a constitutional duty, “neither a matter of grace nor a matter of privilege”. In practice the Union’s ministers advise the President through the Home Ministry, and a state’s ministers advise its Governor.

How a mercy petition travels from jail to the President

Before 2024 the route came from executive guidelines and prison manuals. In Shatrughan Chauhan the Court described it: after the Governor rejects a petition the convict applies to the President, whose office forwards it to the Home Ministry. That Ministry then asks the state for the trial court, High Court and Supreme Court judgments, the Governor’s decision, the state’s recommendation, the case record and the prisoner’s health status. According to the Union, this took time, and repeated petitions added delay.

The Bharatiya Nagarik Suraksha Sanhita, 2023, in force since 1 July 2024 in place of the Code of Criminal Procedure, now writes the route into section 472. A convict under sentence of death, or an heir or relative, may petition within 30 days of the jail superintendent reporting that the Supreme Court dismissed the appeal, review or special leave petition, or that the High Court confirmed the sentence and the time to appeal has run out. It may go to the Governor first, and after the Governor rejects or disposes of it, to the President within 60 days.

Next, the Centre seeks the state’s comments and makes its recommendation to the President “as expeditiously as possible”, within 60 days of receiving the comments and the jail’s records. After the President decides, the Centre must pass the order to the state’s Home Department and the jail within 48 hours.

Shatrughan Chauhan also quotes the Union circular on what the Home Ministry weighs: the convict’s age and mental state, doubts an appeal court voiced about the evidence, fresh evidence, a split among High Court judges, and long delays in investigation and trial. It suggested adding the delay in the mercy decision itself.

On 9 December 2024 a three-judge bench in State of Maharashtra v. Pradeep Yashwant Kokade directed every state and Union territory to set up a dedicated mercy-petition cell in its Home or Prison Department. Each cell has an officer-in-charge, sends petitions to the Governor’s or President’s secretariat as soon as it receives them, and reports compliance to the Court within three months.

The ordinary remission powers that sit beside the constitutional ones

Sections 473 to 477 of the Sanhita give the “appropriate Government” a statutory power to suspend, remit and commute sentences. Section 475 sets a floor: a person sentenced to life for an offence where death was an option, or whose death sentence was commuted to life, cannot be released before serving 14 years.

Maru Ram upheld the earlier version of that rule, section 433A, in force from 18 December 1978. It called the old Code’s remission sections “a separate, though similar, power”, so the rule does not narrow Articles 72 and 161. In Union of India v. V. Sriharan (2 December 2015) a five-judge bench held by majority that the right to claim remission or commutation under those articles “will always be available being Constitutional Remedies untouchable by the Court”.

What the courts can and cannot review

A man sentenced to death had his son petition the President on 14 October 1988, and the President’s Secretary replied that the President could not go into the merits of a case the highest court had finally decided. Five judges disagreed in Kehar Singh v. Union of India (16 December 1988). A President may examine the evidence on the record and reach a different conclusion, they held. The extent of the power “falls squarely within the judicial domain”, but an order cannot be reviewed on its merits except within the narrow limits set in Maru Ram. There is no right to an oral hearing, and no guidelines are needed because “the power under Article 72 is of the widest amplitude”. His petition was treated as pending before the President, to be decided afresh.

In Epuru Sudhakar (11 October 2006) two judges examined an Andhra Pradesh order of 11 August 2005 that remitted about seven years of a convict’s unexpired sentence. They set it aside, finding irrelevant and extraneous material in the decision and no disclosure of pending criminal cases. Five grounds for challenging a presidential or governor’s order appear in the judgment: no application of mind, bad faith, extraneous or wholly irrelevant considerations, relevant material kept out, and arbitrariness. It repeats Maru Ram’s line that religion, caste, colour or political loyalty are “totally irrelevant and fraught with discrimination”. Further inquiry by the Governor stayed open, as did treating the petition as pending.

Section 472(7) of the Sanhita now says no appeal lies in any court against an order of the President or Governor under Article 72 or 161, that it is final, and that how the decision was reached “shall not be inquired into in any Court”. Kehar Singh, Epuru Sudhakar and Shatrughan Chauhan were all decided before the Sanhita took effect.

The delay rule of 2014 and what followed

On 21 January 2014 three judges decided Shatrughan Chauhan v. Union of India, which gathered petitions from convicts, their families and the People’s Union for Democratic Rights. No time limit can be fixed for the President or a Governor, the Court held, but undue, unexplained and inordinate delay lets it commute a death sentence under Article 32, once it is satisfied the convict did not cause the delay. It reasoned that Article 21 protects a prisoner “till the very last breath of their lives”. It commuted 15 death sentences to life imprisonment, among them two where it found delays of 7 years 8 months and about 9 and a half years from the filing of the petition until the convict learned of the rejection. In both, it noted, the Home Ministry’s summary for the President did not mention the delay.

A compilation placed before the Court showed that mostly until 1980 mercy petitions were decided in 15 days to 10 or 11 months, that the average rose to about four years from 1980 to 1988, and that it fell to about five months from 1989 to 1997. Its guidelines call for written notice of a rejection to the convict and family, a copy of the rejection, legal aid, regular mental health checks, a final meeting with family, and at least 14 days between the rejection reaching the convict and the execution date. Retribution, it says, “has no Constitutional value”.

On 13 April 2023 the Supreme Court left in place a Bombay High Court order that commuted death sentences because the state and Governor had kept the mercy petitions pending for about 7 years and 10 months. It changed the commuted sentence to life imprisonment for the convicts’ natural lives without remission and directed all states to decide such petitions at the earliest. In the Kokade order of 9 December 2024, sessions courts are also told to leave 15 clear days between a convict receiving the execution warrant and the execution.

What the numbers show, and where the disagreement lies

Report No. 262 of the Law Commission, dated 31 August 2015, tabulated decisions by President. Its figures for the first nine Presidents come from archives and RTI data and are not official, it says. It totals 437 petitions decided, 306 commuted and 131 rejected. From 1950 to 1982 it counts one rejection against 262 commutations, and from 1982 to 1997 it counts 93 rejections and seven commutations. Pratibha Patil (2007 to 2012) commuted 34 and rejected five, and Pranab Mukherjee had rejected 31 of the 33 he decided by the report’s date.

The President’s Secretariat’s own statement lists 36 numbered rejections from 5 November 2012 to 16 July 2020, some covering several convicts, and four commutations dated from 15 November 2012 to 1 January 2017. Six of those rejections, from 23 April 2018 to 16 July 2020, fall in the term of President Kovind (2017 to 2022). ETV Bharat reported on 7 July 2022, citing the Secretariat, that he disposed of every petition that reached him and left none pending. PTI reported on 14 December 2025 that a rejection dated 6 November 2025, taken from the status Rashtrapati Bhavan disclosed, was the third since the President took office on 25 July 2022.

On timing, the Home Ministry told the Lok Sabha on 16 December 2014 that under Article 72 “there is no limitation of time within which the power conferred may be exercised”.

Two views of the system sit side by side in the record. The Law Commission wrote in 2015 that mercy powers are a safeguard against miscarriage of justice, but that because writ courts “on a relative routine basis” find rejections marred by procedural violations, arbitrariness or non-application of mind, the safeguard “appears to not be working very well”. The Union applied to the Supreme Court in January 2020 to modify the 2014 guidelines, arguing they favoured the convict, and asked for time limits on legal remedies and a seven-day deadline for execution after a death warrant, according to LawTrend’s report. On 8 October 2025 the Court dismissed that application and declined to reopen the guidelines or add timelines.