This article is written by Samiksha Madan, a law student at Symbiosis Law School, Hyderabad. The article analyses the pardoning power of a Governor as mentioned in Article 161 of the Indian Constitution and provides an understanding of the various instances when a Governor can exercise this power granted to him by the Constitution.
It has been published by Rachit Garg.
A Governor is the nominal executive head of the state and is appointed by the President of India. The Governor is granted a range of powers under the Indian Constitution, which can be broadly segmented into executive, legislative, financial, and judicial powers. The Governor’s judicial powers include the power to grant pardons. Promoting public welfare, which constitutes the primary objective of all punishments, will be encouraged by both a suspension of the sentences as well as their execution. This serves as the basis for the pardoning power, which is to be exercised on this basis. The power of the Governor to pardon a convict under Article 161 of the Indian Constitution is a constitutional duty, similar in many ways to the power placed on the President under Article 72 of the Indian Constitution, and hence is a constitutional responsibility rather than a right or privilege granted.
What is pardoning power
A pardon is an antediluvian concept of grace, mercy, or forgiveness, used by the British Crown at one time to either forgive and pardon or punish a person accused of a crime. The power to pardon has been bestowed upon the President of India (under Article 72 of the Indian Constitution) and the Governor of a State (under Article 161 of the Indian Constitution). Such a constitutional scheme has been provided to ensure justice from harsh and unjust laws or from judgements resulting in injustice. The recent ruling on the Governor’s pardoning power overrides Section 433A of the Criminal Procedure Code, 1973, which states that a prisoner’s sentence can only be remitted after he has served 14 years in prison. The Supreme Court ruled on August 3, 2021, that the Governor of a State has the authority to pardon inmates, including those on death row, even before they have completed at least 14 years of imprisonment.
Pardoning powers of a Governor
The power of the Governor to grant a pardon has been entailed under Article 161 of the Indian Constitution. It states that the Governor shall have the power “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”. The executive action of pardoning must be exercised to promote justice rather than subvert it.
Effect of a pardon
The effect of a pardon is to absolve the person not only from the punishments or the penal consequences of the offence but also from civil disqualifications, for instance, loss of office following conviction, in order to place the person in the same position as if he had never committed the offence in question [Deputy Inspector General of Police v. D. Rajaram (1959)].
Article 161 of the Indian Constitution entails within its scope the power to grant a pardon for all offences. However, the Governor would have the authority to exercise such power only when the offence in question relates to a law ‘to which the executive power of the State extends’. For instance, it was stated in the case of Ramanaiah G.V. v. Supdt. Central Jail, Rajahmundry (1973), that the Governor does not have the power to remit, suspend, or commute a sentence for an offence committed under Section 489A-D of the Indian Penal Code, since the subject matter of the ‘currency and bank notes’ is within the exclusive Union jurisdiction.
To pardon is to release a convict from any further punishment for a crime committed by him. The Governor has the power to pardon both the conviction and the sentence of a convict, such that it absolves the sentence, punishment, and any disqualifications. The pardoning power of a Governor, however, is not as broad as that of the President under Article 72. The President of India is the only authority with the power to pardon a conviction by a court-martial or pardon a death sentence. Moreover, the sovereign power of the government with respect to pardoning under Article 161 is exercised by the State government and not the Governor on his own.
The word ‘respite,’ in its general sense, refers to the grant of a temporary relief period. In law, it refers to the delay in imposing a sentence. However, it does not, in any way, modify a sentence or address a question with respect to due process, guilt, or innocence. The Governor of a State has the power to respite a convict under Article 161 of the Indian Constitution and entails within it the power to award a lesser sentence to the convict. For instance, the physical disability of a convict or pregnancy could be grounds for using this power.
The word ‘reprieve’ in law refers to a temporary suspension or postponement of a criminal sentence or a delay in the implementation of the same order by the court. The Governor, under Article 161, may exercise his power to reprieve a convict for a temporary period of time.
The Governor may exercise his power to remit under Article 161 by reducing the period of sentence awarded to the convict. However, the power to remit only applies to reducing the duration of sentences and in no circumstance affects the nature of the punishment. For instance, a sentence of rigorous imprisonment for three years may be commuted to rigorous imprisonment for two years, but the nature or character of the imprisonment remains rigorous.
Commuting a sentence refers to the power of substituting a sentence imposed on an individual by the judiciary for a lesser sentence. The power to pardon a death sentence vests with the President of India, and the Governor does not have the authority to pardon the same. However, he may remit, reprieve, or commute a death sentence so awarded. In addition to this, he has the power to commute the punishment of a convict of an offence committed against the state law.
Types of pardon a Governor can grant
The provision providing for the pardoning power of the Governor authorises:
- The Governor to grant amnesty or a general pardon to the convicts or undertrial prisoners charged with political/non-political offences – [In Re: Maddela Yerra Channugadu … vs Unknown (1954)]
- The Governor has the authority to grant a pardon to an accused before, during, or after a trial, even in cases of criminal contempt of court, whether with or without conditions.
- To reprieve or suspend a sentence, with or without condition, during the pendency of an appeal.
- To remit a sentence that exempts the accused from undergoing the sentence, or any part of it, notwithstanding the decision of the court imposing the sentence – [Hukum Singh v. State of Punjab (1974)]
- To respite the execution of a sentence for a temporary period – [K.M. Nanavati v. State of Bombay (1960)].
- To commute a sentence to a lower punishment [Section 433 of the Criminal Procedure Code, 1973].
Difference between the pardoning powers of the President and the Governor
|Basis of differentiation||President||Governor|
|Scope of the pardoning power||The pardoning power of the President is wider in scope.||The pardoning power of the Governor is not as broad as that of the President of India.|
|Power with respect to a punishment or sentence by a Court Martial||The President of India has the power to grant pardon, reprieve, respite, suspension, remission, or communication in respect of punishment or sentence by a court martial.||The Governor of a state has no such power.|
|Provision under the Constitution||The pardoning power of a President is entailed under Article 72 of the Constitution of India.||The pardoning power of the Governor is entailed under Article 161 of the Constitution of India.|
|Power with respect to grant of a death sentence||The President of India has the sole power to grant pardon, reprieve, respite, suspension, remission, or communication in respect of a death sentence.||The Governor of India does not have the authority to pardon a death sentence. However, the President does have the right to suspend, remit, or commute the death sentence, but not to pardon the same, even if the state law calls for the death penalty.|
1. Swaran Singh v. State of U.P. (1998)
In the present case, the Governor of U.P. granted remission of life sentence which was awarded to the Minister of a State Legislature with some other persons who had been found guilty for the offence of murder of one Joginder Singh. The Supreme Court halted the Governor’s order and stated that, while it is true that it lacks the authority to interfere with an order made by the Governor in accordance with Article 161, it must intervene when that power has been used arbitrarily, mala fide, or in complete disregard of the “finer cannons of constitutionalism.” It was further stated that such an order cannot get approval of law and in cases such as this, “the judicial hand must be stretched to it.”
2. Epuru Sudhakar v. State of A.P. (2006)
The accused in this case was awarded a death sentence for the commission of the murder of a political opponent, and this sentence was further confirmed by the High Court of Andhra Pradesh. The pardon granted to the accused by the Governor was subsequently quashed by the Supreme Court. The Court held that any exercise of the pardoning power by the Governor can be quashed if it was made on the grounds of caste, religious, or political consideration. The President’s or Governor’s decision to award a pardon may be contested if it was made arbitrarily, without due consideration, with mala fide consideration, or with regard to matters that are entirely unrelated to the case at hand.
3. Perarivalan case
In the present case, Perarivalan was convicted for the assassination of former Prime Minister Rajiv Gandhi and was sentenced to death for the commission of offences under the Indian Penal Code, the Explosive Substances Act, 1908, the Wireless Telegraph Act, 1933, the Foreigners Act, 1946, the Arms Act, 1951, and the Terrorist and Disruptive Activities (Prevention) Act, 1987. His sentence was later commuted to life imprisonment by the Supreme Court of India in the year 2014. A petition under Article 161 of the Indian Constitution remained pending for about two and a half years following the recommendations of the State Cabinet for remission of his sentence and further continued to remain pending. The Supreme Court subsequently invoked Article 142 of the Indian Constitution and ordered his release and stated that the advice of the State Cabinet to pardon Perarivalan was binding on the Governor under Article 161 of the Indian Constitution.
4. K.M. Nanavati v. State of Bombay (1961)
In this case, the Bombay High Court convicted the petitioner for the offence of murder and sentenced him to life imprisonment. The petitioner was being held by the Navy at the time the High Court gave the ruling. The petitioner filed a request for leave to appeal to the Supreme Court shortly after the High Court pronounced its judgement. The same day, the Governor issued an Order under Article 161 of the Indian Constitution, suspending the sentence subject to the need that the accused remain in naval jail custody until the Supreme Court has decided on his appeal. The arrest warrant obtained for the accused was returned unserved.
The question was whether the accused should accept his punishment and surrender to the sentence as required by Supreme Court regulations under O. XXI, R. 5, or whether he should continue to be held in naval custody in accordance with the Governor’s order under Article 161.
As per what was concluded by the Court, the Governor’s power to suspend a sentence under Article 161 was subject to the regulations and rules established by the Supreme Court in those cases that were pending before the Court on appeal. Insofar as it conflicted with the ruling of the Supreme Court requiring the petitioner to surrender to the punishment imposed, the Governor’s authority to suspend a convict’s term was undesirable. In the exercise of what is predominantly referred to as mercy jurisdiction, the Governor is free to award a full pardon whenever necessary, even while the matter is pending before the Supreme Court. But while the Supreme Court is considering the case, the Governor is not permitted to use his authority to suspend the sentence. The Governor’s order could only be held valid until the Supreme Court declared the case to be ‘sub judice,’ which happened after the petition for special leave to appeal was filed. The power of the Governor cannot be used following the filing of such a petition and until the conclusion of the judicial process.
Since the pardoning power of the President or the Governor is a residuary sovereign power, neither of them exhausts their pardoning powers entailed under Article 161 and Article 72, respectively, once a single petition for pardon, commutation, etc. is denied. In furtherance of this, it was decided that nothing prevents him from reassessing the pertinent facts, such as the shift in global opinion on the death penalty in the case of G. Krishta Goud & J. Bhoomaiah v. State of A.P. (1975). The power to pardon is quite broad and does not place any restrictions on when, how, or under what conditions it may be used.
Frequently Asked Questions (FAQs)
How is the power stated under Article 161 different from that entailed under Article 142?
The scope of Article 161 of the Indian Constitution is broader when compared to that of Article 142. In a very limited field, the power found in Article 161 is also contained under Article 142, namely, the ability to suspend sentencing while the matter is sub-judice. As a result, on the basis of harmonious construction and in order to prevent a conflict between the two powers, it must be held that article 161 does not address the suspension of punishment while article 142 is in effect and the case is pending in court.
How can a convict get the benefit of a remission order under Article 161?
A convict must voluntarily surrender to the jail after their bail period has expired in order to be eligible for a remission order issued under Article 161.
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