In ordering the release of Rajiv Gandhi assassination case convict A G Perarivalan, the Supreme Court Bench of Justices L Nageswara Rao and B R Gavai invoked the extraordinary power conferred on the court under Article 142 of the Constitution.
GS-II: Polity and Governance
Dimensions of the Article:
- What is Article 142 of the Constitution?
- Background: Timeline of the legal battle for Perarivalan’s release
- President’s Pardoning Power: Article 72
- Governor’s Pardoning Power: Article 161
- Types of Pardon’s by the Governor
- Difference between Pardoning Powers of Governor and the President
What is Article 142 of the Constitution?
- Article 142 provides discretionary power to the Supreme Court.
- Subsection 1 of Article 142 (“Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.”) says “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
Background: Timeline of the legal battle for Perarivalan’s release
- A pardon plea was filed by Perarivalan before the Tamil Nadu Governor in 2015.
- In 2018, the SC asked the Governor to decide the pardon plea as he “deemed fit”.
- The Tamil Nadu Cabinet had recommended to the Governor to release Perarivalan and six others in 2018 itself.
- The cabinet decision to remit sentences of all seven convicts, including Perarivalan, was welcomed by all political parties in the state.
- But the Governor chose to take time and hence the cabinet’s decision is pending.
- In 2020, the Madras High Court said that Tamil Nadu Governor cannot sit on the state government’s recommendation for so long and reminded that there is no time limit prescribed for the constitutional authority (Governor) to decide on such issues only “because of the faith and trust attached to the constitutional post”.
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.
Important Points regarding Pardoning power of the President of India
- 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:
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 Pardon’s by the Governor
- 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.
- 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.
- 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.
- 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.
- 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 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.|
|His pardoning powers are granted for the cases where the convict has committed an offence against a Union law||His 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
-Source: The Hindu