- On May 18, 2022, the Supreme Court ordered the release of former Prime Minister Rajiv Gandhi assassination case convict A.G. Perarivalan.
- While doing so, the Supreme Court exercised the power conferred on it under Article 142 of the Constitution.
- In Perarivalan case , the Supreme Court invoked Article 142 (1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.
- The Supreme Court held that it was not a fit case to be remanded to the Governor for his consideration under Article 161 of the Constitution.
- The Supreme Court also held that the Tamil Nadu Council of Ministers’ advice to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of Clemency) of the Constitution.
What was the issue?
- In 2018, Tamil Nadu government had recommended the release of all seven convicts in former Prime Minister Rajiv Gandhi assassination case under Article 161 of the Constitution.
- The Governor, instead of acting on the recommendation, referred it to the President.
Article 72 and 161 of the Constitution
- Both the President and the Governor have been vested with power of pardon by the Constitution, commonly referred to as Mercy or Clemency power.
- 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.
- 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.
What is the difference between Statutory power and Constitutional power?
- 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.
- In Maru Ram etc. vs Union of India (1980), the Supreme Court said: “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.”
- 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.