Difference Between Pardoning Powers of President and Governor

The power to grant pardons and other forms of clemency is a significant constitutional provision in India. It forms an important part of the criminal justice system as it provides a check on the judiciary and offers a chance for mercy and correction of judicial errors. This power is vested in the President of India under Article 72 and in the Governors of States under Article 161 of the Indian Constitution.

Although the pardoning powers of the President and the Governors may appear similar at first glance, there are crucial differences in their scope, extent, and the nature of offences to which they apply. This article explores these differences in detail, elaborating on the constitutional provisions, judicial interpretations, practical implications, and the role these powers play in India’s federal structure.

Constitutional Provisions for Pardoning Powers

Article 72: Pardoning Power of the President

Article 72 empowers the President of India to grant pardons, reprieves, respites, remissions, and to suspend, remit, or commute sentences in specific cases. The scope of the President’s power includes:

• Cases where the sentence is passed by a court-martial.
• Offences against any law made by the Parliament.
• Cases where the sentence is a death sentence.

The clemency powers under Article 72 serve as an executive check on judicial decisions, allowing the President to intervene in cases where there may have been errors, undue harshness, or exceptional humanitarian grounds.

Article 161: Pardoning Power of the Governor

Article 161 vests similar powers in the Governor of a State. However, these powers apply only to:

• Offences against any law made by the State Legislature.
• The Governor can also grant pardons, reprieves, respites, remissions, and suspend, remit, or commute sentences.

The Governor’s power does not extend to offences punishable under central or Union laws and does not cover court-martial sentences.

Key Differences Between Pardoning Powers of President and Governor

The Constitution of India grants both the President and the Governors the authority to grant pardons and other forms of clemency under Articles 72 and 161 respectively. While these powers serve the same general purpose—to provide relief from punishment or correct judicial errors—there are significant differences in their scope, jurisdiction, and nature. Understanding these distinctions is essential to grasp how clemency operates within India’s federal structure.

Jurisdiction and Applicable Laws

• President: The pardoning powers of the President extend to offences under Union laws and court-martial sentences. This means the President can grant clemency in any case where the offence relates to laws enacted by the Parliament of India or where the sentence is imposed by a military court.
• Governor: The Governor’s clemency powers are limited strictly to offences committed under state laws. The Governor has no authority to intervene in cases involving Union laws or court-martial sentences.

Power Over Death Sentences

• President: One of the most critical distinctions is the President’s exclusive power to grant a full pardon in cases involving the death penalty. The President can pardon, commute, remit, suspend, or reprieve a death sentence, offering a vital safeguard against wrongful executions.
• Governor: The Governor does not have the power to grant a pardon for death sentences. If a death sentence is imposed under state law, only the President can exercise the power to pardon it. However, the Governor may commute, remit, or suspend such sentences.

Authority Over Court-Martial Sentences

• President: The President has the exclusive authority to grant clemency in cases involving sentences passed by military courts (court-martials). This power helps maintain a balance between military discipline and justice.
• Governor: Governors have no jurisdiction over military justice. Therefore, they cannot pardon or modify court-martial sentences.

Nature of Power and Advice

Both the President and the Governor exercise their pardoning powers based on the aid and advice of their respective Councils of Ministers. The President acts on the advice of the Union Council of Ministers, whereas the Governor acts on the advice of the State Council of Ministers. This ensures that pardoning power is an executive function and not a personal discretion.

Override of Statutory Limitations

Both the President and the Governor’s powers override certain statutory provisions such as Section 433A of the Criminal Procedure Code (CrPC), which imposes minimum imprisonment terms before remission. For example, even if a convict has not served the minimum 14 years required under the CrPC, the President or Governor may still grant remission or pardon.

Scope of Clemency Types

The range of clemency powers—pardon, reprieve, respite, remission, suspension, and commutation—is available to both authorities. However, the scope of application differs depending on whether the offence is federal or state and whether it involves a death sentence or military court.

Federal Structure and Balance

The distinctions in pardoning powers reflect India’s federal structure, where certain powers are reserved for the Centre (President), and others for the States (Governors). The President’s broader power aligns with the need for national oversight on serious offences, especially those involving military discipline and capital punishment. Meanwhile, Governors focus on state-level offences.

Types of Clemency Powers

Both the President and Governors may exercise a range of clemency powers. These include:

• Pardon: Complete forgiveness of the offence, removing the conviction and all consequences.
• Reprieve: Temporary delay in the execution of a sentence, especially in death penalty cases.
• Respite: Awarding a lesser punishment on special grounds, such as pregnancy or illness.
• Remission: Reduction of the sentence duration without changing the nature of the sentence.
• Suspension: Temporary stoppage of the sentence’s execution.
• Commutation: Substitution of one form of punishment for a lighter one, such as commutation of death sentence to life imprisonment.

Conclusion

The pardoning powers vested in the President under Article 72 and the Governors under Article 161 are constitutionally recognised executive powers intended to provide a humanitarian check on the judiciary. 

While they share similar forms, the President’s pardoning power is broader in scope, covering offences under central laws, court-martial sentences, and including the exclusive right to pardon death sentences. The Governor’s power is limited to state laws and excludes full pardoning of death sentences or military offences.