Law and Public Opinion : On Perarivalan Release : Daily Current Affairs

Relevance: GS-2 - Judiciary, Government Policies & Interventions, Issues Arising Out of Design & Implementation of Policies

Key Phrases: Article 161, Pardon, Commutation, Remission, Respite, Reprieve, complete justice, dehumanizing

Why in News?

The Supreme Court recently has invoked its extraordinary power to order the release of A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case.
Perarivalan has drawn public sympathy, largely because he was only 19 when he got embroiled in the assassination plot and later revelations in his confessional statement for his link in the purchase of a battery used in the belt bomb in the suicide bombing.
The Court held that the Governor is bound by the State Cabinet’s advice when acting under Article 161 of the Constitution, that his reference to the President was “inimical to the scheme of the Constitution” and that remission remains firmly under the State’s jurisdiction in this case.

Pardoning power of President:

The pardoning power of the President includes the following:

Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
Remission: It implies reducing the period of a sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Scope of the Pardoning Power:

Both the President and the Governor have been vested with the sovereign power of pardon by the Constitution, commonly referred to as mercy or clemency power.
Under Article 72, the President can grant pardons, reprieves, respites, or remissions of punishment or suspend, remit or commute the sentence of any person convicted of any offence
- in all cases where the punishment or sentence is by a court-martial,
- in all cases where the punishment or sentence is for an offence under any law relating to the Union government’s executive power, and
- in all cases of death sentences.
The President cannot exercise his power of pardon independent of the government. This principle was reiterated by the SC in Kehar Singh Case (1988).
- Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.
It is also made clear that the President’s power will not in any way affect a Governor’s power to commute (not pardon) a death sentence.
Under Article 161, a Governor can grant pardons, reprieves, respites, or remissions of punishment, or suspend, remit, or commute the sentence of anyone convicted under any law on a matter which comes under the State’s executive power.

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 which 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 the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Constitutional Provisions:

Article 142:
- Article 142 provides a unique power to the Supreme Court, to do “complete justice” between the parties, where at times law or statute may not provide a remedy.
- The framers of the Constitution felt that this provision is of utmost significance to those people who have to suffer due to the delay in getting their necessary reliefs due to the disadvantaged position of the judicial system.
Article 161:
- Under Article 161, the Governor of a state possesses the pardoning power.
- A Governor can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against a state law.
- The advice of the state cabinet is binding on the Governor in matters relating to commutation /remission of sentences under Article 161.
- Also, the orders passed by the Governor, under Article 161, can be subjected to judicial review.

Past Judicial Pronouncements:

The advice of the appropriate Government binds the Head of the state.
- Maru Ram v Union of India case (1980) –Even though the President and Governor are the executive heads, but they cannot exercise their discretion with regard to their powers under Articles 72 and 161. Both the executive heads are required to act on the advice of the appropriate government–Central and State governments.
- The court followed Maru Ram’s case wherein it was held that the state government can advise the governor who is bound to take it.
Undue delay in execution of mercy petition-
- Shatrugan Chouhan v. Union of India– Undue delay would entitle the death convict to seek relief under Article 32 r/w Article 21 to get his death sentence commuted.
- Inordinate delay caused due to circumstances beyond the control of the death convict and which is caused by the authorities for no “reasonable ground”, the court should itself commute the sentence rather than “remanding the matter for reconsideration of mercy petition”.
Under exceptional circumstances power of the court under Article 142:
- Manohar Lal Sharma v. Principal Secretary:
  - The Supreme Court can deal with exceptional circumstances interfering with the larger interest of the public in order to fabricate trust in the rule of law.
- Union Carbide Corporation v. Union of India:
  - In Bhopal Gas Tragedy Case, the court ordered to award compensation to the victims and placed itself in a position above the Parliamentary laws.
AG Perarivalan Case:
- Supreme Court invoked its extraordinary powers under Article 142 and ordered the release of Perarivalan.
- SC has also put an end to all doubts by holding that the
  - Governor is bound by the State Cabinet’s advice when acting under Article 161 of the Constitution
  - Governor’s reference to the President is without any constitutional backing and is inimical to the scheme of our Constitution.
  - In this case, remission remains firmly under the State’s jurisdiction
- However, nothing has been said on what should be done when the absence of any time frame for the President or the Governor is exploited to indefinitely delay executive decisions.

Way forward:

Undue, inordinate and unreasonable delay in execution of death sentence has dehumanizing effects.
The mercy petitions under Article 72/161 should be disposed of at a much faster pace than what is adopted now.

Sources: The Hindu Indian Express

Mains Question:

Q. Recently Supreme Court ordered the release of Perarivalan the convict in the Rajiv Gandhi assassination case. In this context analyze the clemency powers of the President and Governor and support your answer with relevant judgments and constitutional provisions?