Explained | Pardon and remission, and who grants them  

How do pardon powers of the President and Governor differ from government’s jurisdiction to release convicts?

May 15, 2022 04:21 am | Updated 09:52 pm IST

The story so far: 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. The Governor, instead of acting on the recommendation, referred it to the President. In the course of the arguments, the Additional Solicitor-General of India K.M. Nataraj contended that only the President, under Article 72 of the Constitution, could consider a claim for pardon or remission, and not the State Governor, if the offence involved was based on a parliamentary law.

What is the scope of the pardon 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. Under Article 72, the President can grant pardons, reprieves, respites or remissions of punishment or 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 under any law relating to the Union government’s executive power, and in all cases of death sentences. 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.

Under Article 161, a Governor can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence of anyone convicted under any law on a matter which comes under the State’s executive power.

What is the difference between statutory power and constitutional power?

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. 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 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.

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.

Also read | Governors can pardon prisoners, including death row ones: Supreme Court

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.” In this case, a Constitution Bench upheld the validity of Section 433A of CrPC, which was introduced in 1978, to prevent the premature release of some life convicts before they spend 14 years in jail. It said that 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.

The court also reiterated that life sentence meant imprisonment for life until the last breath, unless remitted by the government. 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).

What is the issue in the Rajiv Gandhi assassination case?

Seven persons were convicted by the Supreme Court in its May 1999 final verdict in the Rajiv Gandhi assassination case. Of these, four — Sriharan alias Murugan, Nalini, Perarivalan and Santhan — were given the death penalty. The other three — Robert Payas, Jayakumar and Ravichandran — were sentenced to life terms.

Also read | Demand for release of Rajiv Gandhi assasination case convicts: A timeline

In 2000, the Governor commuted the death sentence of Nalini to one of life, based on a recommendation by the Cabinet. The remaining three remained on death row and their mercy petitions were pending with the President. In 2014, the Supreme Court commuted the sentences of Sriharan, Perarivalan and Santhan to life terms. Immediately, the then Chief Minister Jayalalithaa decided to remit their sentences. The State government wrote to the Centre, seeking its opinion within three days. It had to do so as under Section 435 of the CrPC, the State had to consult the Centre, as it was a case probed by the CBI.

However, the Centre challenged the State government’s decision in the Supreme Court and obtained a stay. Questions arising from the controversy were settled by a Constitution Bench, which said the State government could not release them without the Centre’s concurrence as the Union government’s opinion had primacy in the matter. Also, it made it clear that its opinion was limited to statutory remission proceedings under the CrPC, and that “the constitutional power under Articles 72 and 161 will remain untouched.” The Union Home Ministry formally rejected the plea for remission in June 2018.

In September 2018, the State government decided to invoke Article 161 of the Constitution. It advised the Governor that the remainder of the life term of the seven convicts be remitted so that they could be released. However, in the absence of a time-frame for the Governor to act, nothing was known about it for a long time. Nearly three years later, it became known that the Governor has referred the question to the President. The immediate constitutional question is whether the Governor can make such a reference to the President. The other issue that arises is whether the primacy accorded to the Centre’s opinion under the CrPC in this particular case can be extended even to remission that may be granted by the Governor under Article 161.

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