Governor of a State can Pardon Prisoners including Death Row

04 May 2025

Introduction

The Supreme Court (SC) ruled, on August 03, 2021, that the governor of a state is authorised to remit the sentence of a lifetime prisoner even before he/she has served 14 years of imprisonment. Such power is granted to the governor of a state by Article 161 of the Indian constitution. However, according to the Criminal Procedure Code (CrPC), the state government cannot pardon a lifer unless he/she has served the 14-year jail term.

The Verdict of the Supreme Court

Considering the case of State of Haryana & Ors vs Raj Kumar @ Bittu, the SC, in August 2021, held that the governor of a state can pardon convicts, even those on death row, prior to their serving 14 years of imprisonment, ignoring the provision mentioned under Section 433A of the CrPC. Earlier, only the president had the power of pardoning the death-row convicts. In other words, the pardoning power granted to the president or governor by the Article 72 and Article 161 of the Indian Constitution, respectively, cannot be influenced by Section 433A of the CrPC.

Remission of Sentences under the CrPC

The CrPC allows for remission of prison sentences, which means that the entire or a part of the sentence may be cancelled.

According to Section 432, the appropriate government has the authority to suspend or remit a sentence, either fully or partially, with or without conditions. This power enables state governments to release prisoners before they complete their full prison term.

Under Section 433, the appropriate government may also reduce (commute) any sentence to a lesser one.

However, as per Section 435, if the case was investigated by the CBI or any agency under a central law, the state government can order such remission or suspension only after consulting the central government.

In cases involving death sentences, the central government may also use this power, along with the state government.

Although these powers seem similar to those granted under the Constitution, they are different in nature. Under Articles 72 and 161, the president and the governor, respectively, can suspend, remit, or commute sentences based on the advice of the central or state government. In contrast, under the CrPC, the government acts on its own authority.

The SC further clarified that the governor’s pardoning power, under Article 161, may be exercised only on the aid and advice of the chief minister and the council of ministers. In other words, it is the state government that actually exercises the power of the governor to remit a lifetime prisoner as per Article 161, and the governor cannot exercise it on his own. The head of the state must comply with the advice of the appropriate government, i.e., the state government.

The SC bench concluded that the state government has the power to remit the sentence of a lifetime prisoner who has served 14 years of imprisonment as per Section 432A of the CrPC, whereas the governor, with the consent of the state government, has the power to remit the sentence of a lifetime prisoner, regardless of the prisoner having served the minimum 14 years.

Background

The Supreme Court gave its verdict keeping in view the practicability of Haryana’s remission policies. It took into account if a state government has the power to frame policy regarding the premature release of a lifetime prisoner without completing minimum 14 years jail term, or if the state government has to strictly abide by Section 433A of CrPC, which states that the lifer can be remitted only when he/she has undergone 14 years of imprisonment.

Policy of Haryana Government According to Haryana government’s remission policy, the male lifers who have attained the age of 75 years and have undergone at least 8 years of imprisonment can be granted remission.

Section 433A of the CrPC and the Governor’s Sovereign Power of Remission

Under Section 433A of the CrPC, the state government has certain restrictions to remit or commute the lifetime imprisonment sentence of a convict that includes capital punishment by the law. The power of remission of the state government is also restricted in the cases where the death sentence of the convict was commuted to a lifetime imprisonment.

In any of the above-mentioned situations, if clemency (mercy) has been granted to a lifetime prisoner, such a prisoner must serve 14 years in prison before he can be released. This is mandatory as per Section 433A of the CrPC.

Contrary to this, there is no such restriction on the pardoning power of governor under Article 161 of the Constitution, despite Section 433A of CrPC. He/she can pardon or commute the sentence of a convict, together with the death-row convicts, irrespective of them serving 14 years jail term. This will overrule the restrictions obligated by Section 433A of the CrPC. Such an act of pardoning or commutation will be in accordance with the governmental decision, which may not require even governor’s approval. But the approval of governor may be required as per the rules of business and as a matter of constitutional courtesy.

According to Section 472(7) of the new Bhartiya Nagarik Suraksha Sanhita (BNSS), 2024 once the President has rejected a mercy petition of a death-row convict, the decision cannot be appealed or challenged in any court.

Meaning of ‘Pardon’ in Law

A pardon refers to an act of forgiveness carried out by an authorised person, such as the president or the governor. By this act, a convicted person gets free and does not have to bear the legal consequences of the crime or offence committed by him/her.

Situations When Pardon can be Granted

Pardon can be granted to a person if

a person is mistakenly convicted or if he/she claims that they have been convicted falsely.
it is evident that the convicted persons have paid for their crime or the society regards them as deserving of pardon.
a person is apparently falsely convicted due to the improper judicial procedure. (Here, pardoning may tackle corruption.)

Types of Pardoning Powers in India

Pardon: It implies freeing the person completely from both the conviction and the sentence. Such a person can live a normal life like any other citizen of the country.

Commutation: It implies changing a severe punishment into a less severe one, i.e., changing the form of punishment to a milder form. For instance, a person in power can commute a death sentence into a rigorous imprisonment, while he/she can commute a rigorous imprisonment into a simple one.

Respite: It implies reducing the degree of punishment given to a convicted person due to his/her physical condition, such as if a woman offender is pregnant or if a convict is physically disabled.

Remission: It signifies decreasing the period of sentence, with its nature being the same. For instance, a twenty-year rigorous punishment can be remitted to a ten-year rigorous punishment.

Reprieve: It signifies a temporary delay in the implementation of a sentence, particularly a death sentence. With this pardoning power, a convicted person gets some time to undertake rehabilitation, to gain Presidential Pardon, or to prove himself innocent.

Governor’s Pardoning Power (Article 161)

The pardoning power of the governor of a state is specified under Article 161 of the Indian constitution. By exercising this power, the governor can grant pardons, respites, and reprieves; can remit, commute, and suspend sentence of any convict for any offence committed against the law. Such an offence must be related to a matter that falls under the executive power of the state.

However, the governor of a state is required to exercise his pardoning power only on the aid and advice of the chief minister of the state along with his council of ministers.

President’s Pardoning Power (Article 72)

As per Article 72 of the Constitution, the president can grant pardons, respites, and reprieves; can remit, commute, and suspend the sentence of any convicted person for any offence committed against the law which must be related to a matter that falls under the executive power of the Union.

However, the president is required to exercise his/her pardoning power only on the advice of the council of ministers. This is mandatory particularly at the time of making decisions regarding mercy pleas.

However under Article 74 (1) of the Indian constitution, the president gets the leverage of asking the union cabinet to reconsider their decision once. This time, if the council does not change their decision, it will be binding on the president.

Comparison of the Pardoning Powers The pardoning power of the president has greater scope compared to that of the governor which is explained in the table given below:

Pardoning Powers of the President	Pardoning Powers of the Governor
He has the power to pardon a sentence of the convict awarded by the court-martial or the military court.	Article 161 does not provide any such power to the governor of a state.
He can grant pardon to the convicts if their offence is against a Union law.	He can grant pardon to the convicts if their offence is against a state law.
Earlier, only the president could pardon convicts, including the death-row convicts.	Now, the governor also has the power of pardoning the death-row convicts.

Conclusion

The pardoning power of the executive plays a significant role in amending the flaws of the judicial process. It removes all conviction and sentences, thereby ignoring the guilt or innocence of the convict. At times, the processing of mercy pleas gets delayed, mainly due to inconsistent work of the government and political formalities. So, it is crucial that pardoning laws should be amended so that clemency petitions are rapidly processed.