Pardoning Power of President and Governor

Pardoning Power of President and Governor

Context:

• Power of pardon under Article 73 and 161 by the Constitution is different from judicial power as the governor or the President can grant pardon or reduce the sentence of the court even if a minimum is prescribed.

• The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own.
• The advice of the appropriate Government binds the Head of the state

CONSTITUTIONAL  PROVISIONS:-

PARDONING POWER OF PRESIDENT OF INDIA: ARTICLE 72:

1. 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 offence –
   1. in all cases where the punishment or sentence is by a Court Martial;
   2. 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;
   3. in all cases where the sentence is a sentence of death.

Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.

PARDONING POWER OF GOVERNOR: UNDER ARTICLE 161:

• The Article deals with the power of the Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases.
• The Governor of a State 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 offence against any law relating to a matter to which the executive power of the State extends.

DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND GOVERNOR:

The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161.

The power differs in the following two ways:

• The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
• The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.

PARDONING POWER UNDER JUDICIAL REVIEW:

• There has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not.
• Supreme Court in a lot of cases has laid down the law relating to judicial review of pardoning power.
• In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, it was held by the Supreme Court that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:

1. The order has been passed without application of
2. The order is mala fide.
3. The order has been passed on extraneous or wholly irrelevant considerations.
4. Relevant material has been kept out of consideration.
5. The order suffers from arbitrariness.

• Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial review.

Syllabus: Prelims + Mains; GS II – Indian Polity and Governance