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Pardoning power of Governor

The pardoning power of the Governor, as outlined in the Constitution of India, particularly in Article 161, grants the executive head of a state the authority to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute sentences of individuals convicted of offenses against laws falling under the state's executive purview. 


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Pardoning power of Governor

MEANING AND NATURE OF PARDONING POWER

This power, similar to the President's authority under Article 72, is absolute in nature and not subject to statutory provisions. Article 161 provides the Governor with the discretion to exercise clemency, reflecting the principles of justice, equity, and mercy within the legal framework of the state.


The similarity between the Governor's power under Article 161 and the President's power under Article 72 underscores the importance of executive clemency at both the federal and state levels in India. While the Governor possesses the authority to pardon or mitigate sentences, it is imperative to note that this power is not exercised arbitrarily. 


Rather, the Governor must act on the advice of the Council of Ministers, ensuring that the decision to grant clemency is informed by the collective wisdom of the executive branch of the state government.


The constitutional provision, as elucidated in the information provided, underscores the absolute nature of the pardoning power conferred upon the Governor. This means that the Governor's discretion in matters of clemency is not fettered by any statutory provision. Instead, the Governor enjoys broad discretion to consider petitions for clemency and make decisions based on the merits of each case. 


The Governor's authority in this regard is not subject to external interference, emphasizing the importance of the separation of powers and the autonomy of the executive branch.


Moreover, the exercise of the pardoning power by the Governor is considered a matter of policy for the state government. This means that the state government has the freedom to establish criteria for granting clemency and to exclude certain categories of persons from consideration for pardons or other forms of clemency if deemed expedient. 


However, it is essential to ensure that such exclusions do not amount to insidious discrimination, as the principles of justice and equality underpin the exercise of executive clemency.


In interpreting the scope and application of the pardoning power vested in the Governor under Article 161, the judiciary has played a crucial role in upholding the principles of justice and constitutionalism. Case law, such as Kehar Singh v. Union of India (1989) and Epuru Sudhakar & Anr vs Govt Of A.P. & Ors (2006), has provided valuable insights into the interpretation and application of Article 161. These cases underscore the importance of ensuring that the exercise of executive clemency is consistent with the principles of justice, fairness, and constitutional propriety.


EXTENT OF PARDONING POWER OF GOVERNOR


The extent of the pardoning power vested in the Governor of a state under the Indian Constitution, particularly elucidated in Article 161, is broad and significant. This power encompasses the authority to suspend, remit, or commute sentences, including death sentences, as outlined in Article 72(3).



  • Additionally, the Code of Criminal Procedure, 1973 (Cr.P.C.), provides further mechanisms for the exercise of this power. Section 432(1) of the Cr.P.C. empowers the State Government to suspend the execution of sentences or remit them partially or entirely.

  • Furthermore, Section 433(1) of the Cr.P.C. authorizes the State Government to commute sentences, including death sentences, to less severe penalties. These provisions underline the comprehensive nature of the Governor's pardoning authority, which extends to various forms of clemency.


Article 161 of the Constitution grants the Governor a wider amplitude of power compared to Section 401 of the Cr.P.C. While the former allows the State Government to grant absolute and unconditional pardons, the latter does not provide for such expansive discretion. Moreover, it's essential to emphasize that the Governor's power under Article 161 cannot be restricted by any statutory provision, reaffirming its absolute nature within the constitutional framework.


The case of Deputy Inspector General of Police v. Rajaram highlighted the overlap between the Governor's pardoning power and that of the President, particularly concerning death sentences. This case underscored the need for harmonizing the exercise of executive clemency powers at both the federal and state levels.


In examining the practical implications of pardons and remissions, the case of Sarat Chandra Rabha v. Khagendra Nath clarified that the effect of remission is to reduce the remaining sentence to the duration already served. However, the legal conviction and sentence remain unaffected, implying that certain legal consequences, such as disqualification from candidacy under the Representation of the People Act, may persist despite clemency measures.


Furthermore, the case of Nanavati v. State of Bombay delved into the nuances of the Governor's power to suspend sentences, particularly in the context of pending appeals. Nanavati, convicted of murder, saw his sentence suspended by the Governor until the disposal of his appeal by the Supreme Court. However, the Supreme Court ruled that while the Governor could suspend a sentence at any time, such suspension would only operate until the matter became sub judice in the Court. Subsequently, it was held that only the Court itself could suspend the sentence during the pendency of the case.


The extent of the pardoning power of the Governor under the Indian Constitution, as delineated in Article 161, is comprehensive and absolute. This power encompasses various forms of clemency, including suspension, remission, and commutation of sentences, without being constrained by statutory provisions. However, the exercise of this power is subject to judicial scrutiny and must be harmonized with the legal framework to ensure justice and constitutional propriety.



MISUSE OF PARDONING POWER BY STATE GOVERNMENTS/GOVERNOR


The cases of Swaran Singh and Satpal highlight instances where the power to grant pardons by State Governments has been called into question due to perceived misuse or inadequate exercise of discretion. In the case of Swaran Singh, an MLA convicted of murder in Uttar Pradesh, the Governor granted remission of his life sentence within a remarkably short period of two years.


However, upon closer examination by the Supreme Court, it became evident that crucial facts regarding the convict's criminal history and unsatisfactory behavior during his incarceration were not brought to the Governor's attention. Additionally, it was discovered that the same Governor had previously dismissed the convict's petition for remission, a fact that was not disclosed when a subsequent petition was submitted shortly thereafter. 


This lack of transparency and failure to present all relevant information deprived the Governor of the opportunity to exercise his powers in a fair and just manner, leading the Court to conclude that the pardon was granted arbitrarily. The Supreme Court, in its ruling, emphasized the importance of adherence to constitutional principles and fair play in the exercise of executive powers, particularly in matters as significant as granting pardons.


Similarly, in the case of Satpal v. State of Haryana, a BJP leader sentenced to life imprisonment for murder was pardoned by the Governor of Haryana. However, upon review, the Supreme Court found that the Governor had not adequately applied his mind to the evidence and circumstances of the case. The Court observed that the Governor had passed the clemency order in a mechanical manner, without carefully considering the material on record. 


This lack of thoughtful consideration and failure to exercise discretion appropriately raised doubts about the validity of the pardon. Despite the argument put forth by the Government that the power of pardon is executive in nature and not subject to judicial review,

the Court reiterated that constitutional powers, including the power to grant pardons, are amenable to judicial scrutiny on certain limited grounds. In this case, the Court's intervention was deemed necessary to uphold the integrity of the pardon process and ensure that executive actions are taken with due diligence and consideration.

These cases serve as cautionary tales regarding the exercise of the pardoning power by State Governments. They highlight the need for transparency, accountability, and adherence to constitutional principles in the exercise of such significant executive powers. While the power to grant pardons is indeed wide-ranging, it is not absolute and must be exercised judiciously. 


The judiciary, as the guardian of the Constitution, plays a vital role in ensuring that executive actions, including the granting of pardons, are in line with constitutional norms and principles of fairness and justice. Judicial review serves as a safeguard against potential abuses of power and helps maintain the balance of powers envisaged by the Constitution. In essence, these cases underscore the importance of upholding the rule of law and ensuring that executive actions are carried out with the utmost integrity and consideration for the principles of justice and fairness.


GROUNDS ON WHICH COURTS CAN INTERFERE


The grounds upon which courts can interfere with an order passed under Article 161 of the Indian Constitution are clearly delineated to ensure the judicious exercise of executive powers. 

  1. Firstly, if the Governor exercises the power without being advised by the Government, it opens the door for judicial scrutiny. 

  2. Secondly, if the Governor oversteps the jurisdiction conferred upon them by Article 161, the court can intervene. 

  3. Thirdly, if the Governor passes the order without applying their mind, acts with mala fide intentions, or bases the decision on extraneous considerations, the court may interfere. 


These principles are analogous to those applicable to the President's power under Article 72, emphasizing uniformity in the standards for executive discretion at both the federal and state levels.


The judiciary plays a crucial role in ensuring the legality and fairness of executive actions, including those related to pardoning powers. The Supreme Court has emphasized that considerations for exercising powers under Articles 72 or 161 may vary widely, but they cannot be wholly irrelevant, irrational, discriminatory, or mala fide. This underscores the importance of adherence to constitutional principles and fairness in the exercise of executive discretion.


In a specific case, the Supreme Court scrutinized the circumstances surrounding the exercise of pardon powers by the Governor. The Court observed an unusual haste in processing the case file and noted the keen interest displayed by authorities in granting the pardon. Such observations suggest a departure from the norms of fair and careful consideration, raising concerns about the integrity of the decision-making process.


In this particular case, the Court concluded that the Governor was not properly advised and was not made aware of crucial aspects of the case that were unfavorable to the accused. This lack of transparency and failure to present all relevant information compromised the fairness and legality of the pardon decision. Consequently, the Court intervened to ensure that the Governor's powers were exercised in accordance with constitutional principles and procedural fairness.


Overall, the grounds for judicial interference with orders passed under Article 161 serve as important safeguards against arbitrary or unjust exercise of executive powers. The judiciary's role in upholding the rule of law and ensuring accountability in the exercise of governmental authority is critical to maintaining the integrity of the constitutional framework.


DISCRETIONARY POWERS OF GOVERNER


The discretionary power vested in the Governor to grant clemency has been clarified through judicial interpretation, establishing that the Governor does not exercise this power independently but acts on the advice of their Council of Ministers.


This principle was underscored in a case where the Governor of Madras rejected a mercy petition without consulting the Council of Ministers. The Madras High Court intervened, ruling that the Governor had contravened constitutional practice by bypassing the advice of the Cabinet. Consequently, the High Court quashed the Governor's decision and directed them to seek the advice of the Council of Ministers before reconsidering the mercy petition.


This ruling reaffirms the constitutional framework governing the exercise of clemency powers by the Governor, emphasizing the role of the Council of Ministers in providing advice. The principle of collective responsibility within the executive branch ensures that decisions regarding clemency are made in accordance with democratic norms and constitutional conventions. By requiring the Governor to seek the advice of the Council of Ministers, the judiciary upholds the principles of accountability, transparency, and the rule of law in the exercise of executive authority.


Furthermore, this case highlights the judiciary's role in safeguarding constitutional principles and ensuring adherence to established practices. By quashing the Governor's decision and directing them to follow the constitutional practice, the High Court reinforces the importance of procedural regularity and adherence to established norms in the exercise of governmental powers. This decision serves as a reminder that executive actions must be consistent with constitutional principles and procedural fairness to maintain the integrity of the democratic process.


The case concerning the Governor of Madras underscores the principle that the exercise of clemency powers by the Governor is subject to constitutional norms, including the requirement to seek the advice of the Council of Ministers. Judicial intervention in cases where this practice is violated reaffirms the judiciary's role as a guardian of constitutional values and ensures that executive actions are carried out in accordance with democratic principles and the rule of law.


Not Absolute

In conclusion, the pardoning power of the Governor as delineated in the Indian Constitution, particularly under Article 161, embodies a significant executive authority aimed at fostering justice, equity, and mercy within the legal framework of the state. However, this power is not absolute and is subject to constitutional constraints, judicial scrutiny, and procedural safeguards. 


The cases discussed highlight instances where the exercise of this power has been called into question due to perceived misuse, lack of transparency, or failure to adhere to established legal protocols. Through judicial intervention, courts have reaffirmed the importance of procedural fairness, adherence to constitutional principles, and the necessity for the Governor to act on the advice of the Council of Ministers in the exercise of clemency powers. 


These legal precedents underscore the crucial role of the judiciary in upholding the rule of law and ensuring accountability in the exercise of executive authority, thereby safeguarding the integrity of the constitutional framework and the principles of justice and fairness.

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