Context

In the latest order of the Supreme Court (under Article 142) for the immediate release of convicts in the Rajiv Gandhi assassination case, one major issue of “delay by the Governor” has been highlighted.

About

Scope of power to grant Pardoning vs. Remission:

• 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’.

• 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.
• 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.
• Article 163 requires the Governor to exercise his/her functionson the aid and advice of the Council of Ministers. Therefore, the Governor is mandated to act on this advice, being the nominal Executive Head of the State.

What does the Constitution say?

• For President vs. Governor: 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.
• For Supreme Court vs. High Court: In the Constitution of India, 1950; Article 226 - Code of Criminal Procedure, 1973; Section 432 - Judicial Review - Appeal against the High Court judgment which allowed the request for remission itself on the premise that it is covered by the policy - It was not within the domain of judicial review for the learned judge to have himself exercised the power of remission.