Pardon is one of the many prerogatives that have been recognized since time immemorial as being vested in the sovereign, regardless of where sovereignty might lie. Whether the sovereign is an absolute monarch, a popular republic, or a constitutional king or queen, sovereignty has always been associated with the source of power, including the power to legislate and adjudicate upon all kinds of disputes.

In the present case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution to suspend the sentence during the pendency of the special leave petition and the appeal to the Supreme Court. The controversy has narrowed down to whether, during the period when the Supreme Court is seizing the case, the Governor could pass the impugned order, which has the effect of suspending the sentence during that period.

There can be no doubt that it is open to the Governor to grant a full pardon at any time, even during the pendency of the case in the Supreme Court, in the exercise of what is ordinarily called "mercy jurisdiction." Such a pardon, after the accused person has been convicted by the Court, completely absolves him from all punishment or disqualification attached to a conviction for a criminal offense. This power is essentially vested in the head of the Executive, as the judiciary does not have such "mercy jurisdiction."

However, the suspension of the sentence for the period when the Court is seizing the case could have been granted by the Court itself. If the Governor also has the power to suspend the sentence for the same period, it would mean that both the judiciary and the executive would be functioning in the same domain simultaneously, potentially leading to a conflict of jurisdiction.

Such a conflict was not, and could not have been, intended by the makers of the Constitution. As long as the judiciary has the power to pass a particular order in a pending case, the power of the Executive is limited by the provisions of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If this is the correct interpretation of these provisions, then what is covered under Article 142 is not covered by Article 161, and similarly, what is covered by Section 426 is not covered by Section 161.

Written By: S Kundu & Associates
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