Pardoning in India
- Even though it is an executive function, the power to grant pardon is more quasi-judicial in nature.
Pardoning Power of the President
- 72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—
- (1) 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—
- (a) in all cases where the punishment or sentence is by a Court Martial
- b) 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;
- (c) in all cases where the sentence is a sentence of death.
- (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
- Pardon removes the sentence and absolves the convict of all the guilt, obligation, or punishment arising out of conviction.
- Commutation – substitution of the given punishment with a lesser form of punishment. Rigorous imprisonment may be commuted to simple imprisonment.
- Remission – means to reduce the period of sentence. No change in nature of the punishment. Rigorous imprisonment of 5 years may be remitted to rigorous imprisonment of two years.
- Respite – awarding a lesser sentence due to some special fact, such as pregnancy, old age or physical disability of the offender.
- Reprieve means to stay the execution of a sentence for a temporary period. The execution may be stayed to seek pardon from President.
- 161. 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.
- In Maru Ram etc. vs Union of India (1980) SC 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.
Difference Between Pardoning Powers of the President and Governor
- The pardoning powers of the President are wide in comparison to that of the Governor as:
- The President can pardon sentences inflicted by court-martial, whereas the Governor cannot.
- The President can pardon death sentences, whereas the Governor cannot.
- SC while releasing Perarivalan using its power under 142, restated that Governor has the power under Article 161 to remit/commute/pardon sentences imposed under Section 302 of the Indian Penal Code, 1860, since the executive power of the State extends to the said provision.
Judicial Review of Pardoning Power of President
- The President’s power to grant a pardon is not absolute.
- He is bound to act on the aid and advice of the COM.
- There is no safeguard to ensure that the advice tendered by the COM is legally sound.
- Hence, in Epuru Sudhakar case, Supreme Court established judicial review of the President’s pardoning powers in the.
“inordinate delay” at the hands of the executive to decide the convicts’ mercy petitions
- “The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition should compel the government to work in a more systematised manner to repose the confidence of the people in the institution of democracy…” Shatrugnan Chauhan Case.
- “…Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime.” Shatrugnan Chauhan Case.
Statutory provisions regarding Pardon
- 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.
- Section 432, the ‘appropriate government’ may suspend or remit a sentence, in whole or in part, with or without conditions
- 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.
Governor’s Pardoning Power v/s 433 A CrPC
- Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution… If the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon… de hors the restrictions imposed under Section 433-A… Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government,”
SC held in 2021 State of Haryana v. Bittu
- 433A – In cases in which the death punishment was available in law, but a person was only given a life term, and in cases in which death sentences were commuted to life, such a prisoner cannot be released unless he had completed 14 years.
- 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.
- 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.”
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