Pardon and Remission powers

Pardon and Remission powers

Subject: Polity

Section: President

In News: The Supreme Court has reserved orders on the question whether a Governor can refer the State government’s advice for granting remission to life convicts to the President for a decision. The court is examining a petition from A.G. Perarivalan, one of the life convicts in the Rajiv Gandhi assassination case, questioning the delay in his release even after the Tamil Nadu government, in 2018, recommended the release of all seven convicts in the case under Article 161 of the Constitution.

Article161: Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

• The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends

Article 72: Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

• 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
  • 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 against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death

Scope of the pardoning power:

• 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.
• It is also made clear that the President’s power will not in any way affect a Governor’s power to commute a death sentence.

Statutory powers 

• The Code of Criminal Procedure (CrPC) provides for remission of prison sentences, which means the whole or a part of the sentence may be canceled.
• 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 less 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.

Difference between Statutory and Constitutional powers:

• 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.

Important Cases:

• In Maru Ram etc. vs Union of India (1980), the Supreme Court said: “Section 432 and Section 433 of the Code are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power.”
• This was also a landmark decision in that it declared that the President and Governor do not independently exercise their power when disposing of mercy petitions or pleas for remission or commutation, but only on the advice of the appropriate governments. This principle was reiterated in Kehar Singh (1988).