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Post at: Aug 13 2021

Governors can pardon prisoners, including death row ones: Supreme Court

Recent Context

  • The Supreme Court on August 03, 2021 in State of Haryana vs. Rajkumar 2021 case held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum 14 years of prison sentence.

Observations of Supreme Court

A bench of Justice Hemant Gupta and A. S. Bopanna made observations regarding the pardon powers of the governor.

  • The Supreme Court observed that state governments have no power under the criminal procedure code to release a person sentenced to life imprisonment prior to undergoing a minimum 14 years jail term.
  • On the other hand, the court stated that the Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A (which mandates that a prisoner’s sentence can be remitted only after 14 years of jail).
  • The Governor using his powers under Article 161 of the Constitution can remit the sentence of a lifer even prior to serving 14 years in prison
  • The Supreme Court bench clarified that the Governor could exercise his remission powers under Article 161 only on the aid and advice of the Council of Ministers headed by the chief minister.

What does one mean by Pardon?

  • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

Pardoning Power of Governor is different than President’s power?

Scope of pardoning power of the President under Article 72 is wider than that of the Governor under Article 161 in two ways:

  • Court Martial: President have the power to grant pardon extends to cases where punishment or sentence is by Court Martial. But no such power is available to governor.
  • Death sentence: As of now, only President had the power to pardon in all cases including that in death sentence cases. Such power was not available to Governor. However, this provision for Governor has been reversed by Supreme Court recently.

Can a petitioner file Mercy plea to the Governor of a State after Centre’s Rejection?

  • A petitioner if filed its mercy petition to central government under Section 432 of the Code of Criminal Procedure (CrPC) and if the appeal has been rejected, no law deny to petitioner for appealing again mercy to the Governor of the state under Article 161 of the Indian Constitution.
  • For instance – After the Centre government’s rejection in 2018 of the Tamil Nadu government proposal (for the accused of Rajiv Gandhi assassination) to remit the sentence of the convicts under Section 432 of the Code of Criminal Procedure (CrPC), the mercy petition has been filed under Article 161 to the Governor of Tamil Nadu.

Conclusion

  • India has a unitary legal system and there is no separate body of state law. Therefore, all crimes are crimes against the Union of India. And hence, a convention has developed that the governor’s powers are exercised for only minor offenses.
  • The recommendation made by the Supreme Court in State of Haryana vs. Raj Kumar 2021 case can provide a different understanding about the pardoning powers of the governor of the states.

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