Baba’s Explainer – Pardoning Powers

• Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
• Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
• Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
• Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
• Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

• Both the President and the Governor have been vested with sovereign power of pardon by the Constitution, commonly referred to as mercy or clemency power.
• Under Article 72, the President can grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of any person convicted of any offence
  • in all cases where the punishment or sentence is by a court-martial,
  • in all cases where the punishment or sentence is for an offence under any law relating to the Union government’s executive power, and
  • in all cases of death sentences.
• The President cannot exercise his power of pardon independent of the government. This principle was reiterated in Kehar Singh (1988).
  • Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.
• It is also made clear that the President’s power will not in any way affect a Governor’s power to commute (not pardon) a death sentence.
• Under Article 161, a Governor can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence of anyone convicted under any law on a matter which comes under the State’s executive power.

What is the Difference Between Pardoning Powers of President and Governor?

• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161 which differs in the following two ways:
• The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
• The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

• The Code of Criminal Procedure (CrPC) provides for remission of prison sentences, which means the whole or a part of the sentence may be cancelled.
• Under Section 432, the ‘appropriate government’ may suspend or remit a sentence, in whole or in part, with or without conditions. This power is available to State governments so that they may order the release of prisoners before they complete their prison terms.
• Under Section 433, any sentence may be commuted to a lesser one by the appropriate government.
• However, Section 435 says that if the prisoner had been sentenced in a case investigated by the CBI, or any agency that probed the offence under a Central Act, the State government can order such release only in consultation with the Central government.
• In the case of death sentences, the Central government may also concurrently exercise the same power as the State governments to remit or suspend the sentence.
• Even though they appear similar, the power of remission under the CrPC is different from the constitutional power enjoyed by the President and the Governor.
• Under the CrPC, the government acts by itself.
• Under Article 72 and Article 161, the respective governments advise the President/Governor to suspend, remit or commute sentences.
• Despite the fact that it is ultimately the decision of the government in either case, the Supreme Court has made it clear that the two are different sources of power.
  • This was reiterated in Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.

• Seven persons were convicted by the Supreme Court in its May 1999 final verdict in the Rajiv Gandhi assassination case.
  • Of these, four — Sriharan, Perarivalan, Santhan and Nalini — were given the death penalty.
  • The other three — Robert Payas, Jayakumar and Ravichandran — were sentenced to life terms.
• In 2000, the Governor commuted the death sentence of Nalini to one of life, based on a recommendation by the Cabinet.
• The remaining three remained on death row and their mercy petitions were pending with the President. In 2014, the Supreme Court commuted the sentences of Sriharan, Perarivalan and Santhan to life terms.
• Immediately, the then Chief Minister Jayalalithaa decided to remit their sentences. The State government wrote to the Centre, seeking its opinion within three days. It had to do so as under Section 435 of the CrPC, the State had to consult the Centre, as it was a case probed by the CBI.
• However, the Centre challenged the State government’s decision in the Supreme Court and obtained a stay.
• Questions arising from the controversy were settled by a Constitution Bench, which said the State government could not release them without the Centre’s concurrence as the Union government’s opinion had primacy in this matter.
  • However, Supreme Court made it clear that the constitutional powers of the President (Article 72) and the Governor (Article 161) “remain untouched”
• The Union Home Ministry formally rejected the plea for remission in June 2018.
• In September 2018, the State government decided to invoke Article 161 of the Constitution (earlier remission was sought under section 435 of CrPC). It advised the Governor that the remainder of the life term of the seven convicts be remitted so that they could be released.
• However, the Governor sat on the recommendation for two-and-a-half years before forwarding it to President Ram Nath Kovind in February 2021, and the delay continued.
• In the absence of a time-frame for the Governor to act, nothing was known about it for a long time.
• The immediate constitutional question was whether the Governor can make such a reference to the President.
• The other issue that arises is which holds primacy in this particular case – Centre’s opinion under the CrPC or remission that may be granted by the Governor under Article 161.

• Supreme Court invoked its extraordinary powers under Article 142 and ordered for release of Perarivalan.
• SC has also put an end to all doubts by holding that the
  • Governor is bound by the State Cabinet’s advice when acting under Article 161 of the Constitution
  • Governor’s reference to the President had been made is without any constitutional backing and is inimical to the scheme of our Constitution”
  • In this case, remission remains firmly under the State’s jurisdiction
• However, nothing has been said on what should be done when the absence of any time-frame for the President or the Governor is exploited to indefinitely delay executive decisions.