Recently, the Supreme Court (SC) made a significant decision regarding the pardoning powers of the Governor. The court ruled that the Governor’s ability to pardon takes precedence over Section 433A of the Code of Criminal Procedure (CrPC). This judgement was delivered during a mercy petition case heard in January 2021. In this hearing, the SC noted that while the Governor cannot reject the state’s recommendations, there is no specific timeframe for a decision to be made.
The Governor’s Power to Pardon Overrides Section 433A
The Supreme Court concluded that a State Governor can pardon prisoners before they have served a minimum of 14 years in prison. This ruling means that the Governor’s pardoning power surpasses the rules presented in the CrPC Section 433A. According to Section 433A, a prisoner’s sentence can only be remitted after serving 14 years. However, this section does not impact the constitutional power conferred on the President or Governor to grant pardons under Articles 72 or 161 of the Constitution.
The Exercise of Power by State Government
It’s important to note that the sovereign power of a Governor to pardon a prisoner under Article 161 is primarily exercised by the State government and not by the individual Governor. The advice of the appropriate government binds the Head of the State.
Commutation Orders and the Role of the State Government
The action of commutation and release is typically a result of a governmental decision. While the order itself may be issued without the Governor’s approval, it is customary, under the Rules of Business and as a matter of constitutional courtesy, to seek his approval if such release is under Article 161 of the Constitution. If a prisoner has served more than 14 years of their sentence, the state government is competent to order premature release under Section 432 of the CrPC or Article 161 of the Constitution. Section 432 of the CrPC empowers the Government to remit sentences.
Pardoning Powers in India: The President and the Governor
Article 72 of the Constitution grants the President power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute a death sentence. However, this power is not independent of the government. This ruling has been supported by several cases including Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
The Governor’s pardoning power, according to Article 161, allows him to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute a sentence against any law relating to a matter to which the executive power of the State extends.
The scope of the pardoning power of the President is broader than that of the Governor due to two main factors; the President can pardon cases where the punishment or sentence is given by a Court Martial, and he is also able to grant pardon in all cases where death sentence is given. The Governor’s pardoning power does not extend to either of these situations.
Glossary of Terms
Pardon: This term refers to the complete removal of the sentence and conviction, absolving the convict completely.
Commutation: Commutation refers to the substitution of one form of punishment for a lesser form.
Remission: This term implies reducing the period of sentence without changing its nature.
Respite: Respite refers to the awarding of a lesser sentence due to special circumstances like physical disability or pregnancy in the case of a woman offender.
Reprieve: This term implies a temporary stay of execution of a sentence, giving the convict time to seek pardon or commutation.
Last Modified: February 13, 2024