Pardoning Power of Governor

• 03 Sep 2021

On 3^rd August, 2021, the Supreme Court held that the Governor of a State can pardon prisoners; including death row ones, even before they have served a minimum 14 years of prison sentence.

What the Court Said?

• The Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A —which mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
• The court noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own.
• The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor’s approval.

Pardoning Power of the President and Governor

President

Under the Article 72, 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.

Governor

• Under the Article 161, 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.

Difference between Pardoning Powers of President and Governor

The power differs in the following two ways:

• (i)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.
• (ii)The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.

(However, the pardoning power of President is NOT absolute. It is governed by the advice of the Council of Ministers. If the Council of Ministers decides against any change, the President has no option but to accept it.)

Landmark Verdict on Pardoning Power

Epuru Sudhakar Case (2006)

In this case, the Supreme Court held that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts.

Granting of clemency by the President or Governor can be challenged on the following grounds:

• The order has been passed without application of mind.
• The order is malafide.
• The order has been passed on wholly irrelevant considerations.
• Relevant material has been kept out of consideration.
• The order is arbitrary.

Kehar Singh vs Union of India (1989)

• The court held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right.
• The power exercised by the President being exclusively of administrative nature, is not justiciable.

Maru Ram vs Union of India (1980)

• Here, the court 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.

Conclusion

• The pardoning power of Executive is very significant as it corrects the errors of judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting pardon is simpler but because of the lethargy of the government and political considerations, disposal of mercy petitions is delayed.
• Therefore, there is an urgent need to make amendment in law of pardoning to make sure that clemency petitions are disposed quickly. There should be a fixed time limit for deciding on clemency pleas.