Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

Article 59, Draft Constitution of India 1948

(1) The President shall have 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 under any law relating to a matter with respect to which Parliament has, and the Legislature of the State in which the offence is committed has not, power to make laws:

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

(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the power conferred by law on any officer of the Armed Forces of India to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) of this article shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or the Ruler of the State under any law for the time being in force.

Article 72, Constitution of India 1950

(1) The President shall have 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.

⁠(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

⁠(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Rajpramukh of a State under any law for the time being in force.

Draft Article 59 was debated on 29th December 1948 and 17th October 1949. It dealt with the President’s pardoning power.

A member proposed to delete clause 3 of the Draft Article. He argued that as the ‘Supreme Head of the State’ only the President must have the power to decide on clemency pleas. He invoked American and English examples to demonstrate how pardoning power is usually restricted to the representative of a nation. If the Governor or Ruler of the Indian States also shared this power, it would impinge on India’s federalism and sovereignty. In response, a member argued against the proposal. He noted how the Governor would be best placed to decide on pardoning cases as he/she would be ‘better informed’. He also pointed out that as an appointee of the Prime Minister, the Governor was responsible to the legislature. This would keep a check on his/her exercise of the pardoning power.

The Chairman of the Drafting Committee clarified the general principles of this Draft Article. The pardoning power for offences committed against Federal laws would be with the President and for those committed against State laws would be with the Governor. However, with respect to the death penalty, both would have clemency power. The Chairman, responding to the proposal to remove clause 3, pointed out that the Draft Article put in place the existing practice. The Governor on Home Minister’s advice would decide on the pardoning pleas first. Only the rejected pleas would then go to the President.

The Assembly adopted the Draft Article without any amendments on 29th December 1948. The Draft Article was reopened for discussion on 17th October 1949 and adopted with a minor amendment.