Supreme Court on Powers of Governor to Grant Pardon or Remit Sentences

INTRODUCTION

 

On today’s show, we will talk about the case of State of Haryana v. Raj Kumar alias Bittu, 2021 SCC OnLine SC 539, wherein the Hon’ble Supreme Court discussed the scope of power of the Governor to grant pardons and remit sentences.

 

IMPORTANT PROVISION

In this regard, the relevant provision of law is Article 161 of the Constitution of India that reads as follows: -

 

“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.”

 

Now, in order to understand Article 161, let us go through the pertinent observations of the Court in this regard.

 

OBSERVATIONS BY THE COURT

Firstly, the Court observed that statutory provisions under the Code of Criminal Procedure that deal with remission and suspension of sentences are separate from Article 161 of the Constitution of India and such statutory provisions cannot affect a constitutional power.

 

Secondly, the Court cautioned that the power of clemency or pardon is to be exercised carefully and such power was never intended to be used in an unbridled manner as “it is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon.”

 

Thirdly, the Court also noted that “the constitutional power is ‘untouchable’ and ‘unapproachable’ and cannot suffer the vicissitudes of simple legislative processes.” However, the Court also explained that the Governor is bound by the advice of the State Government and “the Governor is but a shorthand expression for the State Government.” Therefore, in reality, the power under Article 161 is utliized by the State Government and not the Governor.

 

Fourthly, the Court cited the case of Maru Ram v. Union of India, (1981) 1 SCC 107, wherein it was held that “the power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics” and “the exercise of this plenary power cannot be left to the fancy, frolic or frown of government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must.”

 

Fifthly, according to the Court, when a State Government frames a policy, it can adopt a composite approach and frame a common policy that encompasses both situations under Article 161 of Constitution of India and other statutory provisions. There is no bar that prohibits a State Government from framing such a policy.

 

 And lastly, the Court explained that “a right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one.”

  

The statutory provisions dealing with remission and suspension of sentences were also dealt with in this case that we shall discuss in a subsequent post. I hope that the nature and the scope of power under Article 161 of the Constitution of India is clear.