Scope of Article 161: Pardoning power of Governor

Content:

• Scope of Article 161

• Nature of the Governor’s Pardoning Power

• Judicial Review and the Pardoning Power

• Grounds for Judicial Intervention

• The Limits of the Governor’s Clemency Powers

• Effect of Pardon on Civil Disqualifications

• Forms of the Pardoning Power

• Pardoning power and CrPC

The power of the Governor to grant pardons, reprieves, respites, or remissions of punishment is enshrined in Article 161 of the Indian Constitution. This power represents a significant aspect of the executive authority of a State and forms part of the constitutional machinery that ensures justice and clemency.

The Governor, as the head of the State, is vested with this power, which is akin to that of the British Crown or the American President.

Scope of Article 161

Article 161 confers upon the Governor a 'pardoning power' analogous to that of sovereign entities in other jurisdictions. However, this power is circumscribed by the fact that it can only be exercised in relation to matters where the executive power of the State extends.

In Ramanaiah v. Superintendent, Central Jail, Rajahmundry [(1974) 3 SCC 531; AIR 1974 SC 31], the Supreme Court of India clarified that the Governor cannot exercise his pardoning power for offenses under sections 489A to 489D of the Indian Penal Code, as these fall within the exclusive jurisdiction of the Union.

The scope of Article 161 is broad, and its language does not impose specific temporal or situational limitations on the exercise of power.

In G. Krishna Goud & J. Bhoomaiah v. State of Andhra Pradesh [(1976) 1 SCC 157], the Court held that the Governor could exercise the pardoning power at any time, even if a pardon petition had been previously rejected.

This interpretation signifies the residual sovereign nature of the power, indicating that the Governor does not exhaust his authority merely by an initial refusal to grant clemency.

II. The Nature of the Governor’s Pardoning Power

The Governor's power under Article 161, while executive, is not entirely unfettered. It must be exercised on the advice of the Council of Ministers of the State. This is a discretionary power and is often influenced by policy considerations. The remission granted to certain categories of offenders is not a right but rather a boon, implying that convicts cannot claim remission as an entitlement (State of Haryana v. Balwan, [(1999) 7 SCC 355]).

The effect of a pardon is comprehensive, as it absolves the individual of both the penal consequences and any associated civil disqualifications. For instance, a pardon could negate the loss of office resulting from a conviction (Deputy Inspector General of Police v. Rajaram D., AIR 1960 AP 259).

However, remission or suspension of sentence does not extend to removing civil disqualifications. Thus, while the Governor can modify the penal outcomes of a conviction, the ancillary civil consequences might still persist.

Judicial Review and the Pardoning Power

One of the key issues surrounding Article 161 is whether the exercise of this power is subject to judicial scrutiny. The Supreme Court has clarified that while the exercise of clemency is an executive function, it is not immune to judicial review.

In Epuru Sudhakar v. Government of Andhra Pradesh [(2006) 8 SCC 161; AIR 2006 SC 3385], the Court held that judicial review is permissible to a limited extent. Courts can intervene if the exercise of the pardoning power is found to be arbitrary, mala fide, or influenced by extraneous considerations.

The scope of judicial review, however, does not extend to questioning the wisdom or rationale behind the decision.

In Devender Pal Singh Bhullar v. State of NCT of Delhi [(2013) 6 SCC 195], the Court emphasized that it is not within its purview to examine the merit or sufficiency of reasons for granting or refusing a pardon. Instead, the Court’s role is to ensure that the power has not been exercised in violation of constitutional principles.

Article 361 of the Constitution gives personal protection to the Governor. Where the action of the Governor is alleged to be against the Constitution or the law, it is competent for the Court to inquire into that question and make a proper order against the Government or its officials even though it will not be possible to make any order against the Governor personally.”

Thus, if the Court finds that an order of the Governor purported to be issued under Art. 161 has exceeded the constitutional power of the Governor, the Court may issue a writ to the officer who is holding the accused in custody.’

The Court would be justified in interfering with the order of the Governor if he is found to have exercised the power himself without being advised by the Government or if he transgresses the jurisdiction in exercising the same or it is established that he passed the order without application of his mind or the order is mala fide or has been passed on some extraneous consideration.”

Grounds for Judicial Intervention

Judicial review of the Governor's pardon power can be invoked under several circumstances:

1. Lack of Application of Mind: If the decision to grant pardon appears to have been made without proper consideration of relevant facts, courts may intervene. For instance, if the convict's behavior during incarceration and the duration of the sentence already served are not assessed, the pardon may be deemed arbitrary (Satpal v. State of Haryana, [(2000) 5 SCC 170]).
   

2. Mala Fide Exercise: The power must be exercised bona fide, without ulterior motives. In Narayan Dutt v. State of Punjab [(2011) 4 SCC 353], it was held that an order by the Governor declaring the innocence of the accused would exceed the constitutional limits set by Article 161.
   

3. Extraneous Considerations: If irrelevant factors influence the exercise of power, it amounts to a transgression. The onus is on the petitioner to present prima facie evidence indicating misuse of power. However, the court presumes that the Governor has acted bona fide unless proven otherwise.
   

4. Fraud or Suppression of Material Facts: A pardon obtained through fraudulent means or by withholding crucial facts can be challenged. The Court, in such cases, has the authority to set aside the order of remission.
   

5. Jurisdictional Overreach: Article 161 confines the Governor’s power to matters within the State’s executive domain. If the Governor grants pardon for offenses outside this purview, as in cases related to laws reserved for the Union, such action is ultra vires and subject to nullification.

The Limits of the Governor’s Clemency Powers

Article 161 does not empower the Governor to overrule judicial proceedings or interfere with the due course of justice. The Court retains its authority to pronounce upon the validity and correctness of convictions and sentences.

Even if the Governor exercises the power of remission while an appeal is pending, it does not affect the Court's power to examine the case on its merits (State (Govt of NCT of Delhi) v. Prem Raj, [(2003) 7 SCC 121]). The Governor’s power operates in a distinct arena from the judiciary, and neither should encroach upon the other's jurisdiction.

Furthermore, remission of sentence does not equate to an acquittal. A convict granted remission continues to bear the social and legal consequences of the conviction unless specifically absolved by a pardon. This distinction provides the executive's role in modifying sentences without rewriting judicial findings.

Effect of Pardon on Civil Disqualifications

The effect of a pardon is broader than that of mere remission or suspension of a sentence. While a pardon absolves the individual of all legal consequences, including civil disabilities arising from the conviction (Deputy Inspector General of Police v. Rajaram D., AIR 1960 AP 259), remission does not have this effect.

Therefore, while the Governor can grant amnesty to mitigate the punitive aspect of a sentence, certain disqualifications may persist unless explicitly addressed in the pardon order.

Forms of the Pardoning Power

The Governor's clemency power under Article 161 may take several forms, including:

1. Granting Amnesty: General pardon to convicts or under-trial prisoners, often in relation to political offenses.

2. Pardoning an Accused: The Governor can pardon an individual at any stage—before, during, or after the trial.

3. Suspending Sentences: The power to suspend a sentence during the pendency of an appeal.

4. Remitting Sentences: Exempting the accused from serving the full sentence imposed by the court.

These forms reflect the executive's role in ensuring that justice is tempered with mercy, without undermining the judiciary's authority.

Pardoning power and Statutory Provisions

In Union of India v. V. Sriharan [(2016) 7 SCC 1], the Court clarified that even if clemency has been exercised under Article 72 or 161, the appropriate government retains the power to grant remission under the CrPC. This delineation of powers ensures that the executive can exercise discretion in mitigating punishments while adhering to statutory constraints.

Being a Constitutional power, the exercise of the power under Art. 72 or 161 cannot be followed by any statutory provision, such as ss. 432, 433, 433A, Cr. PC.”

On the other hand, the Court may interfere—

1. On the ground that the authority, which purported to have exercised the power had no jurisdiction to exercise it.”

2. On the ground that the impugned order goes beyond the power conferred by the law upon the authority who made it.” Thus,

Though the Court will not enter into the propriety or sufficiency of the reasons for the exercise of the power in a particular case, the Court may interfere if the Governor exceeds his powers under the Constitution,

1. If he exercises the power in respect of an offence against a law relating to a matter to which the executive power of the State does noi extend” or in a case of punishment by a Court Martial.

2. If the power of remission or suspension of sentence is exercised at a time when the matter is subjudice before the Court under Art. 142 of the Constitution or s. 426 of the Criminal Procedure Code, 1898 (new s. 329).

   
   

3. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the Constitutionalism.

On the ground that the order was obtained by fraud or by suppression of material facts.”

On the ground that the exercise of the power has been mala fide, i.e., taking into account considerations not germane to the power conferred,” but for inadequacy of reasons for making the order and the Government is not bound to give reasons for exercise of the power in a particular case, either in the order or in the return in a proceeding under Art. 226.

Must be exercised Judiciously

Article 161 of the Indian Constitution vests the Governor with significant discretionary powers to grant clemency. While it represents an essential executive function aimed at mitigating the rigidity of the penal system, the exercise of this power is not absolute.

The courts have the authority to review the Governor's decisions to ensure they align with constitutional principles and are free from mala fide intent or extraneous influences.

Judicial review of the pardoning power is, therefore, a safeguard against potential misuse of executive clemency. The Governor's power under Article 161 serves as a mechanism to correct judicial errors, respond to changes in societal values, and address circumstances where the law's strict application may result in undue harshness.

However, this power must be exercised judiciously, with due consideration of legal and constitutional boundaries. The interplay between executive clemency and judicial scrutiny ensures that the values of justice and mercy coexist harmoniously within the Indian legal framework.