Pardoning Powers of Governor "EMPOWER IAS"

In news:

• The Supreme Court has recently said that the investigation into the conspiracy behind Ex-PMs assassination in 1991 need not deter the Governor from deciding the plea for pardon of convicts.

What did the court say exactly?

• The court made it clear that it was reluctant to exercise its jurisdiction when the Governor was already seized of convict’s plea for a pardon under Article 161 of the Constitution.

 

 

Why need Pardon?

• Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
• Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
• Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

 

Pardoning powers in India

• Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
• A similar and parallel power vests in the governors of each state under Article 161.

 

Pardoning Powers of Governor

• Article 161 deals with the Pardoning Power of the Governor.
• The Governor can grant pardons, reprieves, respites and remissions of punishments or suspend, remit and 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 Governor Cannot Pardon a Death Sentence. (The President has the power of Pardon a death Sentence).
• The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

 

 

Pardoning Power of President

• Article 72 empowers the President 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 meaning of these terms is as follows:
  • 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.

 

Procedure Followed for Granting Pardon

• The process starts with filing a mercy petition with the President under Article 72 of the Indian Constitution.
• Such a petition is then sent to the Ministry of Home Affairs for consideration which is then consulted with the concerned State Government.
• After the consultation, recommendations are made by the Home Minister and the petition is sent back to the President.

 

II. Governor

• Similarly, as per article 161: Governor of a State has 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.
• It must be relating to a matter to which the executive power of the state extends.
• Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

 

Difference between Pardoning Powers of Governor and the President

• Pardoning Power of the President   Pardoning Power of the Governor
• He can pardon a sentence of the convict given by the court-martial or the military court       . Governor does not have the power to pardon the sentence inflicted by the court-martial on the convict
• The President can also pardon the death sentence through commutation or in its entirety. Governor cannot pardon the death sentence even if the said sentence has been prescribed under the state law. However, he can suspend, remit or commute the death sentence by using these pardoning powers.
• President’s  pardoning powers are granted for the cases where the convict has committed an offence against a Union law. Governor’ pardoning powers are granted for the cases where the convict  has committed an offence against a state law.

 

Constitutional Provision to Grant Pardon: Article 72

• Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where 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.

 

Procedure Followed for Granting Pardon

• The process starts with filing a mercy petition with the President under Article 72 of the Indian Constitution.
• Such a petition is then sent to the Ministry of Home Affairs for consideration which is then consulted with the concerned State Government.
• After the consultation, recommendations are made by the Home Minister and the petition is sent back to the President.

 

Purpose of Granting Pardon

• Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction.
• The object of conferring this power on the President is two-fold:
   
• To keep the door open for correcting any judicial errors in the operation of law;
• To afford relief from a sentence, which the President regards as unduly harsh.

 

Judicial Stand on Pardoning Powers

• In Maru Ram v Union of India case (1980), the constitutional bench of the Supreme Court of India held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own at his discretion. And that the advice of the Government is binding on him.
• The Supreme Court in Epuru Sudhakar v Ors. case (2006) to rule out any case of arbitrariness or executive mala fide upheld that the granting of clemency by the President or Governor can be challenged in court on various grounds such as, the order has been passed without application of mind, or the order is mala fide, or the relevant material has been kept out of consideration.

 

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.

 

Nature of the Pardoning Power

• The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
• The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
• This has not been discussed by the constitution but is the practical truth.
• Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
• But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
• The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

 

Some traditions

• It is important to note that India has a unitary legal system and there is no separate body of state law.
• All crimes are crimes against the Union of India.
• Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
• While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.