Power to grant Remission vs. Pardoning between Centre and State

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.

• In 2018, the Tamil Nadu State Cabinet recommended their premature release to the Governor.
• The Governor, instead of taking a call, had passed on their files to the Centre.
• The Governor was bound by the advice of the Cabinet in cases of murder as their convictions under the now-lapsed Terrorism and Disruptive Activities (Prevention) Act were set aside by the apex court.
• In May this year, the apex court held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
• The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.

Scope of power to grant Pardoning vs. Remission:

• Both the President and the Governor have been vested with the 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 offense in all cases where the punishment or sentence is by a court-martial.
• It is applicable in all cases where the punishment or sentence is for an offense 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.
• And 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 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 offense involved was based on 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.

What is the difference between statutory power and constitutional power?

• The Code of Criminal Procedure (CrPC) provides for the remission of prison sentences, which means the whole or a part of the sentence may be canceled. 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 offense 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.

Conclusion Drawn:

Hence from the above discussion, we can conclude with the following points:

• No clear mention of any scope of discussion or any recommendation between the President and a Governor regarding the powers to grant remission and pardon.
• Supreme Court can give orders to the High court for an Act of judicial review in remitting a sentence. However, the scope of both SC and the HC are individual and explicit.
• The primacy accorded to the Centre’s opinion under the CrPC depends upon the nature of the case and is not mandatory.