• The Supreme Court said that the state government has power under Code of Criminal Procedure (CrPC) to release a prisoner after serving 14 years of jail term in cases of conviction for the offences prescribing death penalty as the maximum sentence.

• The apex court also said that if the prisoner has not undergone 14 years or more of actual imprisonment, the governor has the power under Article 161 of the Constitution to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence on the aid and advice of the state government, and this authority dehors the restrictions imposed under CrPC.

• The observations were made by a bench of justices in a judgment by which it set aside the May 12, 2020 verdict  of a single judge bench of the Punjab and Haryana High Court. 

• The apex court upheld Haryana’s policy of August 13, 2008 on power to release prisoners by the state government, saying it was issued in exercise of powers conferred under CrPC, and in supersession of earlier order. 

Relevant provisions of the Constitution and CrPC related to this case:

Article 161 – Power of Governor to grant pardons etc, and to suspend, remit or commute sentences in certain cases. 

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.

Code of Criminal Procedure 

432: Power to suspend or remit sentences

(1) When any person has been sentenced to punishment for an offence, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of 18 years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and—

a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

433: Power to commute sentence

The appropriate Government may, without the consent of the person sentenced, commute—

a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

b) a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine;

c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.

433A: Restriction on powers of remission or commutation in certain cases

Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of imprisonment.

Key observations by the SC:

• The power under Article 161 of the Constitution can be exercised by the state governments, not by the governor on his own. The advice of the appropriate government binds the head of the state. 

• The policies of the state government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. 

• The remission under Article 161 of the Constitution will override Section 433-A of the Code, if the state government decides to be governed of its constitutional power. 

• Section 433-A of the Code starts with a non-obstante clause restricting the right of the appropriate government, to suspend the sentence of imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment.

• Therefore, the power of the appropriate government to release a prisoner after serving 14 years of actual imprisonment is vested with the state government. 

• On the other hand, the power conferred on the governor, though exercised on the aid and advice of the state, is without any restriction of the actual period of imprisonment undergone by the prisoner. 

• Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the state government, as an appropriate government, is competent to pass an order of premature release.

• If the prisoner has not undergone 14 years or more of actual imprisonment, the governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A. 

Pardoning powers

• The governor can grant pardons, reprieves, respites and remissions of punishment or suspend, remit and 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. 

• The pardoning power of the governor differs from that of the President. The President can pardon death sentence, whereas the governor cannot pardon a death sentence. 

• However, the governor can suspend, remit or commute a death sentence if the death penalty is awarded in respect of a state law. 

Indian President’s power to pardon

• Article 72 of the Indian Constitution deals with the power of the President to grant pardons, and to suspend, remit or commute sentences in certain cases. 

• However, in order to exercise the power to pardon, the President has to  consider the advice of the Union government. 

Article 72 states that:

(1) 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— 

(a) in all cases where the punishment or sentence is by a Court Martial. 

(b) 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. 

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. 

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a state under any law for the time being in force. 

Meaning of these terms can be understood as:

Pardon: It removes both the sentence and conviction and completely absolves the convict from all sentences, punishments and disqualifications.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, like physical disability of a convict or the pregnancy of a woman offender.

Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.

Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.

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