Articles 72 and 161 and Statutory Remission Compared

⚠ The four differences that matter most in practice

Only the constitutional power can pardon. The statutory power can shorten a sentence or change its kind; it can never wipe out the conviction. A person seeking to be rid of the conviction and its disqualifications must go to the President or the Governor.

Section 475 does not bind the constitutional power. The fourteen-year floor restricts the appropriate Government; it cannot and does not restrict the President or the Governor.

The constitutional power reaches further. It extends to sentences by a court martial and, in the President’s case, to every case where the sentence is one of death — whichever Government would otherwise be the appropriate one.

And the two may be invoked in sequence. A refusal of statutory remission is no bar to a mercy petition, and section 472 now supplies the procedure by which a convict under sentence of death moves from the one to the other.

📖 Swaran Singh v. State of Uttar Pradesh, (1998) 4 SCC 75

Facts: A Governor granted remission of the remainder of a life sentence to a convict within a short time of his conviction, and it appeared that material bearing on the case — including the nature of the offence and the period actually served — had not been placed before the Governor when the order was made.

Held: The Supreme Court held that although the power under Article 161 is a constitutional power of wide amplitude, it is not beyond the pale of judicial review in its exercise. Where it is shown that material facts were not placed before the Governor, or that the order was passed without consideration of relevant material, the Court may examine the matter and quash the order, leaving the authority free to reconsider the case on the full material. The Court held that a power exercised on an incomplete or misleading factual foundation is not an exercise of the power at all: the Governor is entitled to the relevant facts, and an order obtained by placing less than those facts before him is vitiated. It set aside the order of remission and directed that the matter be reconsidered.

Ratio: The power under Article 161 is of wide amplitude but its exercise is not beyond judicial review. An order passed without the relevant material being placed before the Governor may be quashed, leaving the authority to reconsider on the full facts.

📖 Satpal v. State of Haryana, (2000) 5 SCC 170

Facts: A pardon was granted by a Governor to a person convicted of a grave offence, and it was contended that the order had been passed without the Governor being apprised of the relevant facts, including the findings of the courts and the stage the proceedings had reached.

Held: The Supreme Court reiterated that the power of pardon under Article 161 is of the widest amplitude but must be exercised on relevant considerations and with application of mind. Where the Court finds that the authority did not apply its mind because the relevant material was not placed before it, or that the order was passed on the basis of an erroneous or incomplete understanding of the facts, the order is liable to be set aside. The Court held that it is not sitting in appeal over the decision to grant or refuse mercy — that is for the executive — but it is entitled to examine whether the power was exercised in accordance with law. It emphasised that the exercise must be informed, and that where the constitutional authority acts on a factual foundation that is wrong, the resulting order cannot stand.

Ratio: The power of pardon is of the widest amplitude but must be exercised on relevant considerations and with application of mind. An order passed without the relevant material, or on an erroneous factual foundation, may be set aside.

⚠ The grounds on which the exercise may be reviewed

The order was passed without application of mind.

It is mala fide.

It was passed on extraneous or wholly irrelevant considerations — religion, caste or political affiliation among them.

Relevant material was kept out of consideration, or was withheld from the authority.

The order suffers from arbitrariness.

And the Court may call for the records to satisfy itself on those questions — because the rule of law is the basis for the evaluation of all decisions, and no legal or constitutional power is beyond scrutiny of its exercise.

The position stated shortly

1. Article 72 (President) and Article 161 (Governor) confer the power to grant pardons, reprieves, respites and remissions, and to suspend, remit or commute. Sections 473 to 475 confer on the appropriate Government the power to suspend, remit and commute only.

2. There is no statutory power of pardon. Only the constitutional power can wipe out the conviction and its consequences.

3. The constitutional power is exercised on the advice of the Council of Ministers; the statutory power is an executive act of the appropriate Government.

4. Section 475 does not bind the constitutional power. The fourteen-year floor restricts the appropriate Government only: Maru Ram.

5. The constitutional power reaches further — to sentences by a court martial, and in the President’s case to every case where the sentence is one of death.

6. The two run in parallel. A refusal of statutory remission is no bar to a mercy petition, and section 472 now supplies the procedure for moving from one to the other.

7. The merits of a clemency decision are not examined. The Court does not sit in appeal over what mercy required.

8. But the exercise of the power is reviewable on limited grounds: non-application of mind, mala fides, extraneous or irrelevant considerations, exclusion of relevant material, and arbitrariness.

9. An order passed without the relevant material being placed before the authority may be quashed, leaving it free to reconsider on the full facts: Swaran Singh; Satpal.

10. The governing idea: the decision belongs to the executive; the decision-making process is examinable by a court, because the rule of law is the basis for the evaluation of all decisions.