ISSUES AROUND GOVERNOR MERCY PETITION
CONTEXT
- Recently, the Solicitor General told the Supreme Court (SC) that Tamil Nadu Governor will take a decision in the next three or four days on mercy petition of a convict in the 1991 Rajiv Gandhi assassination case.
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- A pardon request moved by the convict in 2015 was not considered by the Governor, however, a SC order on a related petition in September 2018 clarified that the Governor was “deemed fit” to decide on the pardon.
- Thereafter a recommendation to remit his life sentence was advised by the Cabinet under Article 161. However, the Governor’s decision is still pending.
- Centre’s Stand: The pleas for pardon and release should go to the President instead of the Governor as the case is being investigated by a central agency.
- Petitioner’s Argument: A convict was free to choose between the President and the Governor for pardon. Referred to the Constitution Bench’s judgment in the Union of India versus Sriharan 2015, which said the “exercise of executive clemency” was “vested in the President or the Governor”
- SC’s Observation: The SC termed the Governor’s delay “extraordinary”. It also noted how a decision was not forthcoming despite the State government’s recommendation.
BASICS ABOUT PARDONING POWER
PRESIDENT: POWER TO PARDON
- In a monarchy the crown was given the power to pardon. But in India there is democracy.
- According to the Article 52 of the Constitution of India, the President is the Executive head of the Union of India. Thus if the Prof Kenny’s definition is read in Indian context the power should lie with the President, it happens so but with few stipulations.
- Under Article 72 of the Indian Constitution the Indian President is empowered to grant pardon, he can reprieve, respite or remit the punishment.
- The pardoning power of the President is not an absolute one but is governed by the advice of the Council of Ministers.
PARDONING POWER AND JUDICIAL REVIEW
- Judicial review in an independent judiciary is the cardinal feature, and an it assures faith enshrined in the Constitution. The need for independent and impartial judiciary is the command of the Constitution and call of the people.
- Judicial review in India can be broadly divided into judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action.
- In Epuru Sudhakar v. Government of Andhra Pradesh11, the Supreme Court has held that the pardoning power of the President under Article 72 is subject to Judicial Review on the following grounds: –
- No application of mind.
- Mala fide intention.
- Irrelevant or Extraneous considerations.
- Relevant materials not considered.
- Arbitrariness
The pardoning power of President is wider than the governor and it 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 sentence of death but pardoning power of Governor does not extend to death sentence cases.