Governors can pardon prisoners: Supreme Court

August 4, 2021

Supreme Court of India on August 3, 2021 held that, Governor of state can pardon prisoners, including in the death sentence cases.

Key Points

Governor can pardon the prisoners even before they have completed minimum 14 years of prison sentence.
Bench also held that, Governor’s power to pardon overrides a provision given under Section 433A of Code of Criminal Procedure.
Section 433A mandates that sentence of prisoner can be remitted only after 14 years of jail.
Bench observed that, Section 433-A of the Code cannot and does not affect the constitutional power of President or Governor to grant pardon under Articles 72 or 161 of Constitution.
Such power is in exercise of power of the sovereign. However, Governor will have to act on the aid and advice of State Government.
Court noted, sovereign power of Governor to pardon prisoner under Article 161 is exercised by the State government and not the Governor on his own, in reality.

Background

Supreme court bench observed and noted this while considering the feasibility of remission policies in Haryana.

Pardoning Power of Governor

Article 161 of the Indian constitution provides the Governor of a State with power to grant pardons, reprieves, respites or to remit punishment or to suspend, remit or commute sentence of any person convicted of any offence against laws.

How Pardoning Power of Governor is different than President’s power?

Scope of pardoning power of the President under Article 72 is wider than that of the Governor under Article 161 in two ways:

Court Martial: President have the power to grant pardon extends to cases where punishment or sentence is by Court Martial. But no such power is available to governor.
Death sentence: As of now, only President had the power to pardon in all cases including that in death sentence cases. Such power was not available to Governor. However, this provision for Governor has been reversed by Supreme court recently.

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