Pardon and remission
Context
The Supreme Court has reserved orders on the question of whether a Governor can refer the state government's advice for granting remission to life convicts to the president for a decision.
The court is examining a petition from A.G. Perarivalan, one of the life convicts in the Rajiv Gandhi assassination case.
Governor has referred the question to the President whether the remainder of the life term of the seven convicts is remitted so that they could be released.
The Pardon powers
- 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 offence in all cases.
- Here, the punishment or sentence is a court-martial. In all cases, 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 any convicted under any law on a matter which comes under the state's executive power.
Statutory power V/s 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 cancelled.
- The power of remission under the CrPC is different from the constitutional power enjoyed by the President and the Governor.
- 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 less one by the appropriate government.
- Section 435 says that if the prisoner had been sentenced in a case investigated by the CBI or any agency that provided the offence under a Central Act, the State government can order such release only in consultation with the Central government.
- In death sentences, the Central government may also concurrently exercise the same power as the State governments to remit or suspend the sentence.
Supreme Court Verdicts
Maru Ram etc. V/s Union of India (1980), the Supreme Court said that Sections 432 and 433 of the Code are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power.
In this case, a Constitution Bench upheld the validity of Section 433A of CrPC, which was introduced in 1978, to prevent the premature release of some life convicts.
It said that in cases in which the death punishment was available in law, but a person was only given a life term and in cases in which death sentences were commuted to life, such a prisoner cannot be released unless he had completed 14 years.
The court also reiterated that a life sentence meant imprisonment for life until the last breath unless remitted by the government.
Kehar Singh (1988)
The President and Governors do not independently exercise their power when disposing of mercy petitions or pleas for remission or commutation, but only on the advice of the appropriate governments.
Rajiv Gandhi's assassination case
- Seven people were convicted by the Supreme Court in its May 1999 final verdict. of these, four were given the death penalty and the other three were life terms.
- In 2000, the Governor commuted one member the death sentence to life, based on a recommendation by the Cabinet.
- The remaining three remained on death row and their mercy petitions were pending with the president.
- In 2014, the Supreme Court commuted the sentences to life terms.
- Jayalalitha government decided to remit their sentences and wrote to the Centre seeking its opinion.
- The Centre challenged the state government's decision in the Supreme Court and obtained a stay.
- Constitutional Bench said that the state government could not release them without the Centre's Concurrence.
- The statutory remission proceedings under the CrPC and the Constitutional power under Articles 72 and 161 will remain untouched.
- In September 2018, the state government decided to invoke Article 161 of the Constitution.
