DAILY NEWS ANALYSIS

08 February, 2021
7 Min Read

Clemency Power of the President & the Governor

TN Governor Banwarilal Purohit has decided that only the President can decide the issue of granting remission to the seven life convicts in the Rajiv Gandhi assassination case.

What does the constitution say?

Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
A similar and parallel power vests in the governors of each state under Article 161.

I. President

Article 72 says that the president 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.
There are five different types of pardoning which are mandated by law.

Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty years of rigorous imprisonment to ten years.

Cases as specified by art. 72

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 against any law relating to a matter to which the executive power of the Union extends;
in all cases where the sentence is a sentence of death.

II. Governor

Similarly, as per article 161 Governor of a State has 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.
It must be relating to a matter to which the executive power of the state extends.
Please note that President can grant pardon to a person awarded a death sentence. But a governor of a state does not enjoy this power.

Some Conventions:

It is important to note that India has a unitary legal system and there is no separate body of state law.
All crimes are crimes against the Union of India.
Therefore, a convention has developed that the governor’s powers are exercised for only minor offences.
While requests for pardons and reprieves for major offences and offenses committed in the UTs are deferred to the President.

Source: TH

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