Context:

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.

Relevance:

GS-II: Polity and Constitution (Constitutional Provisions, Union and State Executive)

Dimensions of the Article:

  1. Section 433A in The Code Of Criminal Procedure, 1973
  2. President’s Pardoning Power: Article 72
  3. Governor’s Pardoning Power: Article 161
  4. Types of Pardoning Powers of a Governor
  5. Difference between Pardoning Powers of Governor and the President
  6. About the Recent Supreme Court Judgment

Section 433A in The Code Of Criminal Procedure, 1973

Section 433A deals with the restriction on powers of remission or Commutation in certain cases. Section 433A says that where a sentence of imprisonment for life is imposed on conviction of a person for an offence which has death as one of the punishments OR where a sentence of death imposed on a person has been commuted into imprisonment for life – Then such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

President’s Pardoning Power: Article 72

  • Under Article 72 of the Constitution, 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 where the sentence is a sentence of death.
  • The President cannot exercise his power of pardon independent of the government.
  • In several cases, the Supreme Court (SC) has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
  • Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Governor’s Pardoning Power: Article 161

  • Similar to the Pardoning Power of the President, pardoning power of the Governor grants the following:
    • Pardon
    • Respite
    • Remission
    • Reprieve
    • Commute
  • 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.

Types of Pardoning Powers of a Governor

Pardon

  • When the Governor pardons, both the sentence and the conviction of the convict completely absolve the sentences, punishments and disqualifications.
  • The Governor cannot pardon the punishment by court-martial.
  • The Governor cannot pardon the death sentence which only the Indian President can do.

Respite

  • When the Governor uses his pardoning power of ‘Respite’, he chooses to award a lesser sentence in place of one originally awarded to the convict.
  • For example, due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender, the President can use this power.

Reprieve

  • When the Governor chooses the pardoning power of ‘Reprieve’; he stays the execution of a sentence (especially that of death) for a temporary period.
  • By doing this, he enables the convict to have time to seek pardon or commutation from him.

Remit  

  • When the President chooses the pardoning power of Remit, he acts to reduce the period of the sentence but the character of the sentence remains the same.
  • For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year but the imprisonment remains rigorous.

Commute

  • Governor can commute the punishment or sentence of any person convicted of any offence against a state law or he can commute a death sentence.

Difference between Pardoning Powers of Governor and the President

PARDONNING POWER OF THE PRESIDENTPARDONING POWER OF THE GOVERNOR
He can pardon a sentence of the convict given by the court-martial or the military courtGovernor 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.
His pardoning powers are granted for the cases where the convict has committed an offence against a Union lawHis pardoning powers are granted for the cases where the convict has committed an offence against a state law

Hence, the scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161.

About the Recent Supreme Court Judgment

  • The Supreme Court held that a Governor can pardon the prisoners even before they have completed minimum 14 years of prison sentence.
  • It was also held that a Governor’s power to pardon overrides a provision given under Section 433A of Code of Criminal Procedure.
  • Section 433-A of the Criminal Procedure Code cannot and does not affect the constitutional power of President or Governor to grant pardon under Articles 72 or 161 of Constitution.
  • Since the Governor will have to act on the aid and advice of State Government, it was noted that the sovereign power of Governor to pardon prisoner under Article 161 is exercised by the State government and not the Governor on his own, in reality.

-Source: The Hindu

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