The President of India: Election, Powers and Pardoning Power Under Article 72

The President of India is elected indirectly by an electoral college of elected MPs and elected MLAs under Articles 54 and 55, holds office for five years under Article 56, and exercises the executive power of the Union on the aid and advice of the Council of Ministers under Article 74. Under Article 72, the President can pardon, reprieve, respite, remit, suspend or commute sentences in court martial cases, in offences against Union laws, and in every death sentence, but this power too is exercised on ministerial advice and is open to limited judicial review.

This explainer is written for B.A. LL.B. and LL.B. students preparing Constitutional Law, and for any citizen who reads about a mercy petition in the newspaper and wonders how it actually works. If you are a first year student in Nagercoil facing a ten mark question on Article 72, the structure below will also serve as your answer plan.

How is the President elected?

Article 54 sets up an electoral college made of elected members only: the elected members of both Houses of Parliament and the elected members of the State Legislative Assemblies. For this purpose, "State" includes the National Capital Territory of Delhi and the Union territory of Puducherry, so MLAs from Puducherry vote. Nominated members do not.

Article 55 then fixes the value of each vote so that States are represented uniformly and the States as a whole stand at parity with the Union:

• Value of an MLA's vote: the State's population divided by the number of elected Assembly members, then divided by 1,000. A remainder of 500 or more adds one vote.
• Value of an MP's vote: the total value of all MLA votes divided by the total number of elected MPs in both Houses.
• Population figure: until the figures of the first census taken after 2026 are published, the 1971 census figures are used.
• Method: proportional representation by single transferable vote, with a secret ballot.

Under Article 58, a candidate must be a citizen of India, at least 35 years old and qualified for election to the Lok Sabha, and must not hold an office of profit. Sitting Ministers, Governors and the Vice-President are not treated as holding an office of profit for this purpose.

How long does the President serve, and how can the President be removed?

• Term (Article 56): five years from entering office. The President resigns by writing to the Vice-President and continues in office until a successor takes over.
• Vacancy (Article 62): the election to fill a vacancy caused by death, resignation or removal must be held within six months, and the person elected gets a full five-year term.
• Election disputes (Article 71): the Supreme Court alone decides them, and its decision is final. Acts done by a President before the election is set aside remain valid, and a vacancy in the electoral college is not a ground to challenge the election.
• Impeachment (Article 61): the only ground is violation of the Constitution. The charge needs 14 days' written notice signed by at least one-fourth of the total membership of the House, and must pass by two-thirds of the total membership. The other House investigates, the President may appear and be represented, and removal follows only if that House also passes a resolution by two-thirds of its total membership.

What powers does the President actually hold?

Article 53 vests the executive power of the Union in the President and gives the President supreme command of the Defence Forces. On paper this is wide. In practice, Article 74(1) requires the President to act in accordance with the advice of the Council of Ministers headed by the Prime Minister. The President can send advice back once for reconsideration, but must then act on the advice given after reconsideration. Under Article 74(2), courts cannot inquire into what advice was tendered.

Two powers students often confuse:

1. Assent to Bills (Article 111): the President may assent, withhold assent, or return a Bill other than a Money Bill for reconsideration. If Parliament passes it again, the President shall not withhold assent.
2. Ordinances (Article 123): when both Houses are not in session and immediate action is needed, the President can issue an ordinance with the force of an Act. It must be laid before Parliament and lapses six weeks after Parliament reassembles unless disapproved earlier.

What does Article 72 allow?

Article 72(1) lets the President grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute a sentence, in three classes of case: (a) sentences by a court martial, (b) offences against laws on matters within the executive power of the Union, and (c) all death sentences. Clause (3) keeps the Governor's power to suspend, remit or commute a death sentence, which is why Article 161 runs alongside Article 72.

Learn the five terms with one line each:

• Pardon: removes the sentence and the conviction's penalties completely.
• Commutation: substitutes a lighter form of punishment, for example death to life imprisonment.
• Remission: reduces the period of the sentence without changing its nature.
• Reprieve: a temporary stay of execution, often while a mercy petition is pending.
• Respite: a lesser or deferred punishment because of a special circumstance such as ill health.

Keep the constitutional power separate from the statutory one. Sections 473, 474 and 475 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deal with remission, commutation and the 14-year minimum for certain life convicts (formerly Sections 432, 433 and 433A of the CrPC). In In Re: Policy Strategy for Grant of Bail (2025), the Supreme Court confirmed that the power under Articles 72 and 161 remains unaffected by Section 475 BNSS.

How have the courts read the pardoning power?

• Maru Ram v. Union of India (1980, often cited as 1981): the power under Article 72 is exercised on the advice of the Council of Ministers, not at the President's personal discretion.
• Kehar Singh v. Union of India (decided December 1988, reported 1989): a convict has no right to an oral hearing on a mercy petition, and judicial review of the decision is available only on limited grounds.
• Epuru Sudhakar v. Government of Andhra Pradesh (2006): a pardon can be struck down if it was granted without applying the mind, on mala fide or extraneous grounds, by ignoring relevant material, or arbitrarily. The case arose from a Governor's remission under Article 161, but the grounds apply equally to Article 72.
• Shatrughan Chauhan v. Union of India (2014): unexplained, inordinate delay in deciding a mercy petition, and mental illness of the convict, are supervening circumstances that can justify commuting a death sentence. The Court applied this in Navneet Kaur v. State of NCT of Delhi (2014) to commute Devender Pal Singh Bhullar's sentence.
• A.G. Perarivalan v. State (2022): a case from Tamil Nadu arising out of the Rajiv Gandhi assassination. The Court held that the Governor is bound by the State Cabinet's advice under Article 161, that referring the State's recommendation to the President had no constitutional basis, and used Article 142 to order his release.

How should you answer an Article 72 question in an exam?

1. Open with the text of Article 72 and its three classes of case.
2. Define the five forms of clemency in one line each.
3. Explain that the power is exercised on ministerial advice (Article 74, Maru Ram).
4. Discuss judicial review and its limits (Kehar Singh, Epuru Sudhakar), then delay (Shatrughan Chauhan).
5. Compare with Article 161 and cite Perarivalan.
6. Close by distinguishing the constitutional power from BNSS Sections 473 to 475.

Students who want to see how mercy and remission issues reach real prisoners can volunteer with the college legal aid clinic.

Sources

• Constitution of India, Article 72: text of the pardoning power.
• Constitution of India, Article 55: manner of election and vote value formula.
• Constitution of India, Article 61: impeachment procedure.
• Supreme Court, In Re: Policy Strategy for Grant of Bail (18 February 2025): BNSS Sections 473 to 475 and Articles 72 and 161.
• Supreme Court, Navneet Kaur v. State of NCT of Delhi (31 March 2014): applies Shatrughan Chauhan on delay and mental illness.
• Casemine commentary on A.G. Perarivalan v. State (2022): summary of the 2022 judgment.