This law note mentions the pardoning powers of the Governor of a state in India and the recent related judgements passed by the Supreme Court, which bring to light critical changes in the understanding and implementation of the pardoning powers of the Governor.
Article 161 of the Indian Constitution says that whenever a person has committed an offence and the offence committed is against the state law, then the Governor of that particular state can pardon, reprieve, respite, suspend, remit, or commute the sentence (punishment). You can learn the meaning of these terms in this law note: What Are the Pardoning Powers of the Indian President
Governor’s Pardoning Power in Case of Death Row Convicts
The Supreme Court of India, in August 2021, in the case of State of Haryana & Ors vs Raj Kumar @Bittu held that the Governor can exercise the pardoning power in case of death row convicts as well. Earlier, the pardoning power concerning death row convicts was with the President only.
Must Read: 9 Powers of the Indian President
Governor’s Pardoning Power and Section 433A of CrPC
Section 433A of the Criminal Procedure Code imposes certain restrictions on the power of remission and commutation in cases where capital punishment is one of the punishments provided by law or where the death sentence was given to the convict but was commuted to a life sentence.
Section 433A of CrPC says that if a convict has been awarded clemency (mercy) in any of the scenarios mentioned above, then he cannot be released before completing at least 14 years of sentence in jail.
But the Supreme Court, in the above-mentioned case, that is, State of Haryana & Ors vs Raj Kumar @ Bittu, held that the Governor can grant pardon to a person, including the death row convicts, even before they complete 14 years of imprisonment.
Can the Governor Pass a Mercy Plea to President for Consideration?
Recently, the Supreme Court, in the case of A.G. Perarivalan vs State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr (2022) (convict in the Rajiv Gandhi Assassination case), held that the Governor has no right to send a mercy plea to the President for consideration. The pardoning power in such cases vests with the Governor, and he can exercise such power only with the aid and advice of the state executive.
In Dhananjoy Chatterjee alias Dhana vs State of West Bengal (1994), the Supreme Court laid down that the President and Governor can exercise the powers under Article 72 and Article 161 only with the aid and advice of the central and state executives, respectively and not on their own.
Difference Between Pardoning Powers of the President and the Governor
The Constitution of India provides clemency powers to both the President of India and the Governors of states but the ambit of the President’s pardoning power is wider than that of the Governor. The President can exercise the pardoning powers in sentences or punishments given by Court Martial as well.
India has a quasi-federal form of governance, but the functions and powers of both the Center and the states are segregated by the various constitutional provisions backed by important legislations on the same, which can not be violated nonchalantly (in a casual manner).
The bifurcation of the powers of the state executive and the President in case of the Governor’s pardoning power is a clear representation of the ardent abiding outlook of the basic structure doctrine. In simpler words, the bifurcation of the pardoning powers of the Governor and the President is a clear representation of the federal nature of Indian governance.
1. Governor of a State – Role, Importance, and Functions
2. 10 Reasons Why Centre Is Powerful Than the States!
3. What Are the Differences in Pardoning Powers of the Indian President (Article 72) and the State Governors (Article 161)