ARTICLE 161

Sept. 10, 2018

Tamil Nadu Cabinet recommended to Governor to release all 7 life convicts in the Rajiv Gandhi assassination case by using his clemency powers under Article 161 of the Constitution.

Types of Pardoning Power:

Under article 72 and 161 pardoning power is given to president and governor respectively.
Now this pardoning power available to both comprises of following powers –

Type	Meaning
Pardon	§ It rescinds both the 1) sentence & 2) conviction and § Absolves the offender from ALL punishment and disqualification
Commute	§ Substitute one form of punishment to another with a lighter character. § E.g. Substituting death by rigorous imprisonment etc.
Remit	§ Only reduce the amount of punishment, not the character § E.g. Imprisonment of 1 year is Remitted to 6 months.
Respite	§ Means awarding a lesser imprisonment instead of penalty prescribed, in view of some special fact. § E.G.: Of special fact: pregnancy of woman offender.
Reprive	§ Means a ‘Stay’ of execution of a sentence. § E.g: Pending of proceeding for pardon or commutation.

Difference between pardoning powers of President and governor:

	President	Governor
Martial Court	Can pardon, remit etc. a sentence given by martial court	Can NOT pardon, remit etc. a sentence given by martial court
Death penalty	Can pardon death sentence	Cannot pardon. But he can suspend, remit or commute a death sentence.
Jurisdiction	Extends to whole country.	Only to its state.

Other key points:

Pardoning power of president and governor is not a discretionary power rather they MUST act on the aid and advice of their council of ministers
The exercise or non-exercise of pardon power by the President or Governor is not immune from judicial review. Limited judicial review is available in certain cases.

Recent decision:

The 7 convicts have been in jail for over 27 years for assassination of former PM Rajiv Gandhi.
The recent decision by Tamil Nadu government follows the Supreme Court’s observation last week that the Governor shall be at liberty to decide on the remission application of Perarivalan, one of the convicts, “as deemed fit.”
Options before the governor:
- Advice of council of minister is binding on the governor; so he may accept it immediately.
- No time limit is prescribed in the constitution, and the governor can take his time.
- The governor can seek centre’s opinion in the matter.
- The governor can seek reconsideration of the decision.