GOVERNOR’S POWER TO PARDON OVERRIDES SECTION 433A

Introduction

Recently, the Supreme Court held that the governor of a state can pardon( to remove sentence, conviction and completely discharge all the liabilities like punishments, disqualification, and sentences) prisoners including death row individuals, even before they complete 14 years of a minimum death sentence. Governor’s power to pardon overrides Section 433A of CrPC[1]. This section suggests that a prisoner’s sentence can be remitted only after 14 years of jail. This is a contrasting interpretation by the Supreme Court where it also stated that under the Criminal procedural code, the State has no powers to release a person, who is sentenced to life imprisonment before a minimum of 14 years jail term. The bench of Justice Hemant Gupta and A S Bopanna stated that the governor can use his powers under Article 161 and remit the sentence of an individual before undergoing 14 years jail term. The bench also clarified that the governor can use his power under 161 only with the aid of a council of ministers headed by the Chief Minister. It also stated that the power vested with the governor is without any restriction of the actual period of imprisonment served by the prisoner.

Power exercised by the state government

Justice Gupta, in a written judgment, stated that the State government has the power to release a prisoner after serving 14 years of imprisonment. The Court concluded that the sovereign power of the governor to pardon under Article 161 [2]is in reality exercised by the State government because when the State government desire to remit the life imprisonment of an individual, after the serving of 14-year imprisonment, then the state could resort to Section 432 CRPC[3]. While if it desires to release the individual before serving 14 years of imprisonment then it can advise the governor accordingly.

Order of commutation

Even without the governor’s approval, the act of commutation( Substitution of a form of punishment for lighter form), release according to a government decision, and order might be issued. Although, according to rules of Business and constitutional Courtesy, it may seek the governor’s approval if the release is under article 161 of the Indian constitution.

The State government is competent and appropriate if the individual has served more than 14 years of imprisonment but if the prisoner has not undergone 14 years of imprisonment, then the governor has the power to grant pardon, reprieves (stay of execution of a sentence temporarily), respites (to replace the original sentence by lesser sentence due to special reasons like pregnancy, physical disability), and remission (to reduce the duration of sentence without changing the character) of punishment, remit, or commute the sentence of any individual dehors the restrictions that are imposed under Section 433A of the constitution. The bench remarked that the powers conferred on the governor are in the exercise of the power of sovereign but the governor has to act on the advice of the state government. Justice Gupta stated that “the advice of the appropriate government binds the head of the state”. This statement is referred to the Supreme Court’s Constitution bench judgment in Rajiv Gandhi’s assassination case on the power of remission.

The bench set aside the Haryana and Punjab High Court directions that directed the Haryana government to formulate guidelines for exercising the remission powers by the governor. It also stated under Article 161 of the constitution, the governor cannot use the powers on his own. A general grant of remission can be issued by state government order through the governor which must be clear in nature.[4] Governor is empowered to remit sentence under section 432 of CrPC.

Pardoning Power of the President

According to Article 72 of the Indian constitution, the President also had the power to grant a pardon in the cases of a death sentence. But the President can’t have the power to grant a pardon independent of government. In  Maru Ram vs Union of India[5] and Dhananjoy Chatterjee vs State of West Bengal[6], the Supreme Court held that while deciding mercy cases President has to act on the advice of the council of ministers. However, Article 74(1) of the Indian constitution empowers the President to reconsider it. But if the council of ministers is against the changes that the president has made, then the President is bound to accept it.[7]

Difference between the pardoning power of President and governor

According to Article 72 of the Indian constitution[8], the pardoning power of the President is wider than the powers of the governor under article 161[9]. The power of the governor does not extend to the cases in which the punishment or sentence is by Court martial. While the President can exercise such powers. The power of the governor to grant a pardon does not extend to the death sentence while the President’s pardoning power is extended to all those cases in which there is a death sentence.[10]

Conclusion

Therefore, the decision held by the Supreme Court safeguards the interest of the common people as the governor could substantially help in protecting the innocent party. This would ultimately protect the individual from getting wrongly punished due to miscarriage of justice or under doubtful conviction. Additionally, it would keep a room open for correcting judicial errors. On the contrary, this decision has some drawbacks as well. Governor is provided with excessive power as the governor could favor some individuals which could ultimately lead to discrimination and unfairness. Moreover, the proper implementation and effective result could be achieved from this decision when the Governor is fairly aware of the laws, rules, and principles. As per the eligibility for the appointment of the governor, there is no such provision regarding awareness about the law. So, the less or incomplete awareness about various principles involved while deciding the case could lead to injustice.

Author(s) Name: Prashansa Agarwal (Bennett University, Greater Noida)

References:

[1] Code of Criminal procedure s 433A

[2] Constitution of India, Article 161

[3] Code of Criminal procedure s 432

[4] Dhananjay Mahapatra, ‘State can’t, but Governor can release lifers before they spent 14 years in jail: Supreme Court’ (Times of India, 4 August 2021) <http://timesofindia.indiatimes.com/articleshow/85026113.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst> accesed on 22 August 2021

[5] Maru Ram v Union of India 1980 AIR 2147

[6] Dhananjoy Chatterjee v State of West Bengal 1994 SCC (2) 220

[7] Constitution of India, Article 74(1)

[8] Constitution of India, Article 72

[9] Constitution of India, Article 161

[10] Apoorva Mandhani, ‘It’s abdication of power, experts say as TN Governor won’t decide on Rajiv killer’s release’ (The Print, 1 March 2021) <https://theprint.in/judiciary/its-abdication-of-power-experts-say-as-tn-governor-wont-decide-on-rajiv-killers-release/613630/> accessed on 22 August 2021

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