Death Penalty Abolition Debate

Governors can pardon death row: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers

Mains level : Read the attached story

The Supreme Court has held that the Governor of a State can pardon prisoners, including death row ones, even before they have served a minimum of 14 years of a prison sentence.

SC Judgement: Section 433-A CrPC

  • The Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A.
  • This article mandates that a prisoner’s sentence can be remitted only after 14 years of jail.
  • Such power is in the exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government, the apex court observed.
  • Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.

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.

Why need Pardon?

  • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
  • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
  • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

Pardoning powers in India

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
  • A similar and parallel power vests in the governors of each state under Article 161.

[I] President

  1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
  2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that are mandated by law.
  • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

Cases as specified by art. 72

  • in all cases where the punishment or sentence is by a court-martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.

[II] Governor

  • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
  • It must be relating to a matter to which the executive power of the state extends.
  • President can grant pardon to a person awarded a death sentence. But a governor of a state does not enjoy this power.

Nature of the Pardoning Power

  • Not absolute: The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • Aid and advice: The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
  • Constitution is silent on this: This has not been discussed by the constitution but is the practical truth. Further, it does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • Judicial review applicable: But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.

Some traditions

  • It is important to note that India has a unitary legal system and there is no separate body of state law.
  • All crimes are crimes against the Union of India.
  • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
  • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.
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