Bilkis Bano case: 11 lifers convicted for Gujarat riots gangrape, murder set free in Godhra

Bilkis Bano case: 11 lifers convicted for Gujarat riots gangrape, murder set free in Godhra

Subject  : Polity

Section: Governor

Context: Gujarat Additional Chief Secretary (Home) Raj Kumar told that the application for remission was considered due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.

Pardoning Power of President and Governor

• Article 72 and Article 161 empowers the President and the Governors respectively, 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.
• The pardoning power of the President extends to the:
  • Punishment or sentence for an offence against a Union Law,
  • Punishment or sentence is by a court-martial (military court), and
  • Punishment is a Death sentence.
• The pardoning power of the Governor extends to the sentence of any person convicted of any offence against any State law.
  • The Governor cannot pardon against the death sentence and sentence of a Court Martial.
• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161.
• The meaning of the terms:
  • 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 with a lighter form of punishment. For example, a death sentence may be commuted to rigorous imprisonment.
  • Remission: It implies reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for five 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.

Recent SC decision

• The Supreme Court recently held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum 14 years of prison sentence.
• In fact, the Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A —which mandates that a prisoner’s sentence can be remitted only after 14 years of jail, a Bench of Justices Hemant Gupta and A.S. Bopanna observed in a judgment.
• In fact, the court noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own.
• The advice of the appropriate government binds the Head of the State
• The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor’s approval. However, under the Rules of Business and as a matter of constitutional courtesy, it may seek approval of the Governor, if such release is under Article 161 of the Constitution.