SC on pardons: Questions arise

The Supreme Court ruling asserting the constitutional right of a state government to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person underlines two points — the primacy of the Constitution and the rights of a democratically-elected state government vis-a-vis the governor.

As per the Supreme Court's order, the state government’s constitutional power to grant clemency or remission overrides the conditions set in the Criminal Procedure Code. It is for the state government to choose which power it has to invoke: if it's Article 161 of the Constitution, even in the case of a life sentence, it need not wait for the completion of 14 years in jail as mandated by Section 433A CrPC, the court has held, bringing clarity to the subject.

The court has also settled issues related to the discretionary power of the office of governor in the case of remissions by unequivocally stating that the "recommendation of the appropriate government is binding on the head of the state”, and the state government can issue an order in this regard “even without the governor’s approval”. The court has, however, not struck down the rules of business or negate the constitutional courtesy of seeking the governor's approval.

The Supreme Court’s decision is at variance with the practice now followed in several states. A case in point is Tami Nadu, where the governor has not yet acted on the repeated recommendations of the state council of ministers to release the persons held guilty in the assassination of former Prime Minister Rajiv Gandhi despite the fact that they have served about 30 years in prison.

India’s constitutional scheme provides for governance under the Constitution and by elected representatives at the Centre and in states, and the Supreme Court has once again underlined it. Some points need better clarity and understanding, and the court has just provided it. The message must now reach every seat of power.