Pardon & Remission: Difference between powers of President and Governor to grant them

Contact Counsellor

CategoryPolity

Last Updated16/05/2022

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 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.

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.
President: 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.
Governor: 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.

Statutory: 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.
Constitutional: 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.

Maru Ram etc. vs Union of India (1980) Judgement: “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
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.

Prelims Takeaway

Mains Track

Q Explain various constitutional and statutory provisions available to the President and the Governor regarding Pardon and Remission.