Recently, India’s Solicitor General informed the Supreme Court that the decision on a mercy petition related to the 1991 Rajiv Gandhi assassination case is expected to be taken in the next three or four days by the Tamil Nadu Governor. The concept of a mercy petition is regularly practiced in many nations, including India, USA, UK, and Canada. In India, granting of pardons is entrusted to the respective Presidents and Governors under Article 72 and Article 161 of the Constitution. This process adds an element of humanity to the judicial system, giving authorities the power to show leniency towards criminals sentenced to death.
The Background of the Current Case
In this particular case, a pardon request made by the convict in 2015 was initially ignored by the Governor. However, a related Supreme Court order in September 2018 clarified that the Governor was qualified to decide on the matter. Following this, the convict’s life sentence was recommended to be remitted by the Cabinet under Article 161, but the decision is still pending.
Stakes and Arguments Presented by Different Parties
The Centre suggests that pleas for a pardon should be addressed to the President rather than the Governor since the case is being investigated by a central agency. The petitioner argues that he has the right to choose between the President and the Governor for pardon. This argument draws reference to the Constitution Bench’s judgment in 2015’s Union of India versus Sriharan which vested the power of “executive clemency” with the President or the Governor.
The Role of Section 432 of the CrPC
In 2018, the Centre rejected a proposal from the Tamil Nadu government to remit the sentence of the convicts under Section 432 of the Code of Criminal Procedure (CrPC). This section states that the relevant government can, at any time and with or without conditions accepted by the sentenced person, suspend the execution of a sentence or remit all or part of the punishment.
The Supreme Court’s Observations on the Case
The Supreme Court has termed the delay in decision-making by the Governor as “extraordinary” and has noted that despite the State government’s recommendation, the decision is not forthcoming. According to law, the Governor cannot reject the state’s recommendation, but no timeframe is prescribed for taking a decision.
Understanding the Pardoning Powers in India
The President of India has 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, as per Article 72 of the Constitution. However, this power cannot be exercised independently. The President must act on the advice of the Council of Ministers, as judged by the Supreme Court in numerous cases.
The Power of Reconsideration and the Role of the Governor
President is bound by the Cabinet’s advice but has the right to return it for reconsideration once, according to the provisions of Article 74 (1). If the Council of Ministers decides against any change, the President has no option but to accept it.
The Governor of a State also has 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. This power extends to matters under the executive authority of the state, as per Article 161 of the Constitution.
Difference between Pardoning Powers of President and Governor
The power to pardon offered to the President under Article 72 is broader than that given to the Governor under Article 161, which differs in two key ways. Firstly, the President’s power extends to cases where the punishment is by a Court Martial, but Article 161 does not provide such power to the Governor. Secondly, while the President can grant pardons in all cases where the sentence given is the sentence of death, the pardoning power of the Governor doesn’t extend to death sentence cases.
