Article 72 and 73 of the Constitution of India
Article 72 deals with the President's constitutional power to grant pardons and other forms of clemency in specified cases. Article 73 defines the extent of the executive power of the Union. Both provisions form part of Part V, Chapter I of the Constitution of India.
Article 72: Power of President to grant pardons and other clemency
Article 72 confers a constitutional clemency power on the President of India. It applies to specified categories of convictions and sentences. The current constitutional text provides as follows:
72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.
(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 of a State under any law for the time being in force.
Accordingly, Article 72 expressly covers Court Martial cases, offences concerning matters within the Union's executive sphere, and every case in which the sentence imposed is death. Clause (2) preserves clemency-related powers conferred by law on Armed Forces officers in Court Martial matters, while clause (3) preserves the Governor's legally exercisable power concerning a death sentence.
Meaning of the clemency terms used in Article 72
The expressions in Article 72 describe different forms of executive relief. Their precise legal effect depends on the nature of the order and the applicable law.
Article 73: Extent of executive power of the Union
Article 73 identifies the constitutional reach of the Union's executive power. Broadly, it follows Parliament's legislative competence and also covers rights, authority and jurisdiction exercisable by the Government of India under treaties or agreements, subject to the Constitution and the limitations stated in Article 73 itself.
73. Extent of executive power of the Union.
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend-
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
The proviso to Article 73(1) is important in fields where both Parliament and a State Legislature have legislative competence. Unless the Constitution or a Parliamentary law expressly provides otherwise, Union executive power does not automatically displace State executive authority merely because Parliament can legislate on the subject.
Relationship between Articles 72 and 73
Article 72(1)(b) expressly connects the President's clemency jurisdiction with the executive power of the Union. Article 73 helps identify the constitutional extent of that executive power. Article 53 is also relevant because it vests the executive power of the Union in the President, to be exercised in accordance with the Constitution.
Judicial review of decisions under Article 72
The Supreme Court has recognised that the clemency power under Articles 72 and 161 is an executive constitutional power, but its exercise is not wholly beyond judicial review. Courts may examine a clemency decision on recognised public-law grounds, while they do not sit as an appellate clemency authority merely to substitute their own view.
Supreme Court decisions discussing these principles include Epuru Sudhakar v. Government of Andhra Pradesh, Shatrughan Chauhan v. Union of India, and subsequent decisions applying the limited grounds of judicial review to mercy-petition decisions.
Official constitutional sources
For the authoritative and updated constitutional text, readers should verify the provisions from the official Legislative Department publication of the Constitution of India. Supreme Court judgments may be searched on the official Supreme Court of India website.
Legal information page. Constitutional text should be read with applicable amendments and binding judicial decisions.