# Pardoning Power of the President and Governor (Articles 72 and 161): Forms, Mercy Petitions and Judicial Review — UPSC Notes

By Shivam Singh, Founder & Mentor, Minimalist IAS · Published 8 Oct 2026 · Updated 14 Oct 2026
Source: https://www.minimalistias.com/blog/pardoning-power-article-72-161-upsc-notes

> A one-stop UPSC guide to the pardoning power under Articles 72 and 161 — the five forms of clemency, President vs Governor, how mercy petitions move, the delay debate after the Rajoana case, landmark judgments and the 2025 Prelims and Mains PYQs.

**The pardoning power lets the President (Article 72) and the Governor (Article 161) pardon, reprieve, respite, remit or commute the punishment of a convicted person, acting on the advice of their Council of Ministers.** It is the Constitution’s last safeguard against judicial error or undue harshness; at the end of 2024, 564 prisoners were under sentence of death in India (Project 39A, NLU Delhi).

> **In one line:** the courts decide guilt; the elected government, through the President or Governor, may soften the punishment. It is mercy, not an appeal against the court’s verdict.

> **Why in news:** The Centre has opposed Balwant Singh Rajoana’s plea to commute his death sentence, citing the situation in Punjab; his mercy petition has been pending since 2012, and the Supreme Court has said it will examine the plea on merits.

**Updated (October 2026):** the Rajoana case and the 2024 death-row figures are refreshed; the structure now moves from the power itself to how it works, its limits and what is at stake.

## Syllabus mapping

- **Prelims:** Indian Polity and Governance — Constitution, political system.
- **GS Paper II:** Structure, organization and functioning of the Executive and the Judiciary; Indian Constitution — significant provisions.

## What is the pardoning power, and why does the Constitution give it?

The news raises a simple question: who can forgive a convict, and on what terms? The answer starts with why the power exists.

- **Safety valve:** corrects a judicial error or an unduly harsh sentence.
- **Mercy and policy:** lets the executive weigh health, conduct and public interest, which courts cannot.
- **Historical roots:** modelled on the Crown’s prerogative of mercy; in India a constitutional power used on ministerial advice (Kehar Singh, 1989).

## What are the five forms of clemency?

Once the purpose is clear, the next step is to separate the five tools the Articles name, which UPSC loves to blur.

| Form | What it does | Think of it as |
| --- | --- | --- |
| Pardon | Removes the sentence and the conviction; the person is freed from all penalties | Erase |
| Commutation | Swaps the punishment for a lighter kind (death → rigorous → simple imprisonment) | Swap |
| Remission | Cuts the length of the sentence; its character stays the same | Shorten |
| Respite | Awards a lesser sentence because of a special fact, such as pregnancy or disability | Soften |
| Reprieve | Temporarily stays an execution, e.g. while a petition is considered | Pause |

**Remember it as:** Erase, Swap, Shorten, Soften, Pause. **Analogy:** a school punishes a pupil with 10 days’ detention. Pardon wipes the record; commutation swaps detention for a warning; remission cuts 10 days to 6; respite shortens it because the pupil fell ill; reprieve holds it until the principal rechecks.

- **Executive advice:** the President acts on the Union Council of Ministers’ advice (Article 74; Maru Ram, 1980); the Governor on the State’s (Article 163).
- **Only after conviction:** both Articles speak of ‘any person convicted of any offence’.

## President vs Governor: whose power covers what?

Both officers hold the same five tools, but the reach differs, and that difference is a favourite Prelims trap.

*Figure: Comparison card: the President under Article 72 can pardon a death sentence, covers offences against Union laws and court-martial sentences; the Governor under Article 161 cannot pardon a death sentence but may suspend, remit or commute it, covers offences against State laws and has no power over court-martial sentences.*

| Point | President (Article 72) | Governor (Article 161) |
| --- | --- | --- |
| Death sentence | Can pardon, and also suspend, remit or commute | Cannot pardon; may suspend, remit or commute (Article 72(3) preserves this) |
| Court martial | Yes (Article 72(1)(a)) | No power |
| Laws covered | Offences against Union laws | Offences against laws on matters in the State’s executive power |
| Advice of | Union Council of Ministers | State Council of Ministers |

> **Prelims traps:**
> **1. The Governor cannot pardon a death sentence.** He can suspend, remit or commute it.
> **2. Remission is not commutation.** Remission shortens the term; commutation changes the kind of punishment.
> **3. The President cannot act without advice.** Article 74 binds him, and UPSC Prelims 2025 tested exactly this.
> **4. ‘Limited review’ is not ‘no review’.** Courts check the process (mala fides, arbitrariness), never the merits.
> **5. The Constitution sets no deadline for the final decision.** The BNSS timelines cover filing and the Centre’s recommendation only.

## How does a mercy petition work?

Knowing who holds the power, the next question is how a death-row convict actually reaches them.

*Figure: Flowchart of a mercy petition in a death sentence case: the sentence becomes final, a petition is filed within 30 days to the Governor, then to the President within 60 days of rejection, the Ministry of Home Affairs recommends within 60 days of the State's comments, and the President decides on Cabinet advice with no time limit.*

- **Trigger:** the death sentence becomes final — appeal, review or special leave petition disposed of.
- **Filing:** the convict, legal heir or relative petitions the Governor within 30 days, then the President within 60 days of rejection (BNSS, 2023).
- **Processing:** the MHA recommends to the President within 60 days of receiving the State’s comments; the President’s order reaches the State within 48 hours.
- **Decision:** the President decides on the Cabinet’s advice; no deadline is fixed for this last step.
- **Finality:** the BNSS declares the order final, but constitutional judicial review survives → every step has a clock except the last.

## How far can courts review a mercy decision?

Because the decision is final in the statute but not immune in the Constitution, the courts have drawn a careful line.

*Figure: Two cards: courts can check the process of a mercy decision — mala fides, non-application of mind, irrelevant considerations, arbitrariness and undue delay; courts cannot re-examine the merits or demand an oral hearing before the President.*

- **Process, not merits:** Epuru Sudhakar (2006) allows review for mala fides, non-application of mind, extraneous considerations and arbitrariness; an order obtained by fraud or suppression can be cancelled.
- **No oral hearing:** Kehar Singh (1989) held a convict cannot insist on a personal hearing; the President may re-examine the evidence afresh.
- **Delay is reviewable:** undue, unexplained delay can justify commutation (Shatrughan Chauhan, 2014). No reasons are published, so arbitrariness is hard to prove.

## Which judgments built these rules?

Each limit above comes from a case; learn the five in the timeline in order, and the rest as add-ons.

*Figure: Timeline of Supreme Court judgments on the pardoning power: Maru Ram 1980, President acts on Cabinet advice; Kehar Singh 1989, no right to an oral hearing; Epuru Sudhakar 2006, limited judicial review; Shatrughan Chauhan 2014, undue delay can lead to commutation; Perarivalan 2022, Governor bound by State advice.*

- **Maru Ram (1980):** President and Governor act on ministerial advice; the 14-year rule for life convicts cannot restrict Articles 72 and 161.
- **Kehar Singh (1989):** no right to an oral hearing; the President can examine the evidence afresh.
- **Epuru Sudhakar (2006):** limited judicial review of the process.
- **Shatrughan Chauhan (2014):** undue delay and mental illness are grounds for commutation; 15 sentences commuted; safeguards laid down.
- **Perarivalan (2022):** the Governor is bound by State Cabinet advice under Article 161; release ordered under Article 142.
- **Bilkis Bano (2024):** remission of 11 convicts quashed; the ‘appropriate government’ is the State where the trial was held, and the order was secured by suppressing facts.

## What is at stake: delay, politics and the Rajoana case

The rules are settled; the live problem is how they are applied, and that is where Rajoana’s case sits.

- **Delay:** Rajoana’s mercy petition, filed in 2012 through the SGPC, is still pending, about 14 years later.
- **Death row is growing:** 564 prisoners at the end of 2024, the highest since 2000; 561 at the end of 2023 (Project 39A).
- **Trial vs appellate courts:** 139 death sentences by trial courts in 2024, while the Supreme Court confirmed none in 2023 or 2024 (Project 39A).
- **Political influence:** the Centre reportedly told the court that Punjab’s current situation makes commutation risky — a law-and-order reason, not a merits reason.

- **Argument for commuting on delay:** Article 21 protects a convict until the last breath, so years of uncertainty are themselves punishment (Shatrughan Chauhan). Read more on that Article in [Article 22 and detention rights](https://www.minimalistias.com/blog/article-22-arrest-detention-habeas-corpus-upsc).
- **Argument against:** it rewards executive inaction and may sideline the gravity of the crime, especially in terror cases.
- **Court’s position:** the delay must be undue and unexplained; Shatrughan Chauhan held the terror-case exception in Bhullar (2013) per incuriam.
- **Rajoana:** was sentenced to death for the 1995 assassination of Punjab Chief Minister Beant Singh; the Court will weigh the Centre’s reasons.

## Steps taken and way forward

Reform so far has been partial, which points to what remains.

- **BNSS, 2023:** first statutory timelines for filing and processing mercy petitions.
- **Shatrughan Chauhan safeguards:** written communication of rejection, at least 14 days before execution, legal aid, no solitary confinement before rejection.
- **Way forward:** a deadline for the final decision; reasoned orders to enable limited review; insulating decisions from law-and-order politics.

The pardoning power is settled in law; the challenge now lies in its exercise — decisions that are timely, reasoned and free of political calculation, so that mercy does not become a second sentence of waiting.

## Using the pardoning power in a Mains answer

- **Introduction:** Articles 72 and 161 — clemency as a safeguard, on ministerial advice.
- **Body — design:** five forms; President vs Governor; limited review (Epuru Sudhakar).
- **Body — gaps:** delay (Rajoana, about 14 years), opacity, politicisation; 564 on death row (2024).
- **Way forward:** time limit for the final decision, reasoned orders, insulation from political calculation.

## Related PYQs

**UPSC CSE Prelims 2025:**  
**Consider the following statements with regard to pardoning power of the President of India:**  
**I. The exercise of this power by the President can be subjected to limited judicial review.**  
**II. The President can exercise this power without the advice of the Central Government.**  
Which of the statements given above is/are correct?  
(a) I only  
(b) II only  
(c) Both I and II  
(d) Neither I nor II  
**Answer: (a) I only.** Article 74 binds the President to Cabinet advice; Epuru Sudhakar allows limited review.

**UPSC CSE Mains 2025, GS Paper II (10 marks, 150 words):**  
**Compare and contrast the President’s power to pardon in India and in the USA. Are there any limits to it in both the countries? What are ‘preemptive pardons’?**  
Use the contrast: the US President pardons federal offences in personal discretion, even before any charge (Ex parte Garland, 1866; Ford’s 1974 pardon of Nixon), with impeachment excluded, whereas Article 72 speaks of convicted persons and is exercised on Cabinet advice.

**See the detailed explanations:** [Prelims 2025](https://www.minimalistias.com/pyqs/prelims/2025) · [Mains 2025](https://www.minimalistias.com/pyqs/mains/2025) in the free PYQ vault, with year-wise analysis. Free to browse; free sign-up to download.

## Mentor’s note

- **Don’t write that the Governor can pardon a death sentence.** The Governor can suspend, remit or commute it; only the President can grant a full pardon.
- **Keep Article 72 and statutory remission apart.** Remission by the ‘appropriate government’ under criminal procedure law is a statutory power; Articles 72 and 161 are constitutional and override it (Maru Ram).
- **UPSC asked this in both stages in 2025.** Prelims tested advice and judicial review; Mains tested the India–US comparison. Learn each judgment with its holding, not just its name.

## Target Prelims MCQs

**With reference to the pardoning powers under the Constitution of India, consider the following statements:**

1. **The Governor of a State can pardon a death sentence for an offence against a State law.**
2. **The President’s pardoning power extends to sentences passed by a court martial.**
3. **The President exercises the pardoning power on the advice of the Union Council of Ministers.**

How many of the above statements are correct?  
(a) Only one  
(b) Only two  
(c) All three  
(d) None

**Answer: (b) Only two**

**Explanation:**

**Statement 1 is incorrect:** the Governor may suspend, remit or commute a death sentence, but only the President can pardon it.

**Statement 2 is correct:** Article 72(1)(a) covers court-martial sentences; Article 161 does not.

**Statement 3 is correct:** Maru Ram (1980) held that the power is exercised on the advice of the Council of Ministers (Article 74).

**Consider the following statements:**

**Statement-I: Undue and unexplained delay in deciding a mercy petition can be a ground for commuting a death sentence.**

**Statement-II: The protection of Article 21 of the Constitution continues until the execution of the death sentence.**

Which one of the following is correct in respect of the above statements?  
(a) Both Statement-I and Statement-II are correct and Statement-II explains Statement-I  
(b) Both Statement-I and Statement-II are correct, but Statement-II does not explain Statement-I  
(c) Statement-I is correct, but Statement-II is incorrect  
(d) Statement-I is incorrect, but Statement-II is correct

**Answer: (a) Both Statement-I and Statement-II are correct and Statement-II explains Statement-I**

**Explanation:**

**Statement-I is correct:** Shatrughan Chauhan (2014) recognised undue, unexplained delay as a ground for commutation.

**Statement-II is correct and explains Statement-I:** because Article 21 protects a convict till the end, the agony of prolonged delay violates it — which is why delay justifies commutation.

## Mains practice questions

> **Undue delay in deciding mercy petitions converts a lawful death sentence into a second punishment. Examine in the light of judicial pronouncements. (Answer in 150 words; 10 Marks)**

> **‘The pardoning power is not a matter of grace but a constitutional responsibility.’ Critically examine the scope of judicial review over the exercise of this power by the President and the Governor. (Answer in 250 words; 15 Marks)**

## Terms to know

- **BNSS:** Bharatiya Nagarik Suraksha Sanhita, 2023 (replaced the CrPC)
- **Mala fides:** bad faith or improper motive
- **Per incuriam:** a ruling given without regard to binding law, so not a precedent

## Frequently asked questions (FAQs)

### What is the pardoning power of the President of India?

Under Article 72, the President can pardon, reprieve, respite or remit, or suspend, remit or commute, the sentence of a convict in Union-law offences, court-martial cases and all death sentences, on the Union Council of Ministers’ advice.

### What is the difference between the pardoning powers of the President and the Governor?

The President can pardon death sentences and court-martial sentences; the Governor cannot. The Governor’s Article 161 power covers State-law offences and, for death sentences, only suspension, remission or commutation.

### Can a mercy petition decision be challenged in court?

Yes, on limited grounds. Epuru Sudhakar (2006) allows review for mala fides, non-application of mind, irrelevant considerations or arbitrariness, but not on the merits.

### Is there a time limit for the President to decide a mercy petition?

No. The Constitution and the BNSS, 2023 set no deadline for the final decision; the BNSS fixes timelines only for filing and the Centre’s recommendation. Undue delay can justify commutation.

### Can delay in a mercy petition get a death sentence commuted?

Yes. Shatrughan Chauhan (2014) held that undue, unexplained delay violates Article 21 and can justify commutation, though each case turns on its facts.

## 60-second revision

- **Which five forms?** Pardon (erase), commutation (swap), remission (shorten), respite (soften), reprieve (pause).
- **Can the Governor pardon a death sentence?** No — only suspend, remit or commute; the President alone can pardon it.
- **Who decides in practice?** The Council of Ministers; the President and Governor are bound by its advice (Maru Ram, Article 74).
- **What can courts review?** The process (mala fides, arbitrariness, undue delay), never the merits (Epuru Sudhakar).
- **What is the open gap?** No deadline for the President’s final decision; Rajoana’s petition has waited about 14 years.

## Related reading

- [Article 22 and the Delhi detentions: arrest vs detention, habeas corpus](https://www.minimalistias.com/blog/article-22-arrest-detention-habeas-corpus-upsc)
- [Practise previous-year Polity questions in the free PYQ vault](https://www.minimalistias.com/pyqs)
- [Revise the NCERT basics of the Indian executive in NCERT Foundations](https://www.minimalistias.com/resources/ncert)
- [All Daily UPSC Briefs](https://www.minimalistias.com/resources/daily-brief)

## Sources

- [Constitution of India — Articles 72, 74, 161 and 163 (Legislative Department)](https://legislative.gov.in/constitution-of-india/)
- [Project 39A, NLU Delhi — Death Penalty in India: Annual Statistics 2024](https://project39a.com/annual-statistics-2024)
- [Bharatiya Nagarik Suraksha Sanhita, 2023 — mercy petitions (Vidhi Centre)](https://vidhijudicial.com/section-472-of-the-bharatiya-nagarik-suraksha-sanhita,-2023-241216172257.html)
- [Verdictum — Supreme Court on Rajoana’s commutation plea](https://www.verdictum.in/app-lite/supreme-court/supreme-court-asks-centre-to-file-affidavit-on-plea-by-balwant-singh-rajoana-seeking-commutation-of-his-death-sentence-1612601)

**Minimalist IAS static notes — by Shivam Singh.**

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