Pardoning Power of Governor under Article 161 of Constitution

The Indian Constitution grants several important powers to the Governor of each State. Among these, the pardoning power under Article 161 stands out as a significant executive function. This power allows the Governor to grant pardons, reprieves, respites, remissions of punishment, or to suspend, remit or commute sentences in respect of offences under State laws.

What is the Pardoning Power?

The pardoning power is an ancient concept rooted in the prerogatives of sovereign authority. Historically, it was a royal privilege exercised by monarchs to grant mercy to convicted persons. In India, this prerogative is constitutionalised to ensure that justice is tempered with mercy.

Under the Constitution of India, the pardoning power is divided between:

• The President (Article 72) — for offences against Union laws, death sentences, court-martial punishments, etc.
• The Governor (Article 161) — for offences under State laws.

The Governor’s power acts as a corrective and humanitarian mechanism, preventing undue harshness in sentencing and allowing relief in exceptional circumstances.

Scope of the Governor’s Pardoning Power (Article 161)

Article 161 states:

“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.”

Offences Covered

The Governor’s pardoning power extends only to offences under State laws. This means:

• Convictions under State statutes are within scope.
• Offences falling under Union laws, such as the Indian Penal Code’s Sections 489A to 489D (related to currency offences), are outside this power.
• Punishments awarded by court-martials and death sentences can only be pardoned by the President, not the Governor.

Forms of Clemency under Article 161

The Governor can exercise clemency in the following ways:

• Pardon: Complete absolution of the offence, nullifying both punishment and legal consequences.
• Commutation: Substitution of one form of punishment for a lesser one (e.g., death sentence changed to life imprisonment).
• Remission: Reduction of the quantum of punishment without altering its nature (e.g., rigorous imprisonment for 10 years reduced to 7 years).
• Respite: Awarding a lighter sentence on special grounds (like pregnancy or physical disability).
• Reprieve: Temporary suspension of a sentence, usually to allow time for appeal or review.

Temporal Scope

The Governor can exercise this power at any time, even if a previous petition for pardon has been rejected. This residual nature gives flexibility and humanitarian scope.

Distinction Between Governor’s and President’s Pardoning Powers

Although both the Governor and the President have clemency powers, their scope differs:

Thus, the Governor’s power is narrower, limited to State matters.

Effect of a Pardon and Other Clemency Forms

Effect of a Pardon

A pardon absolves the convict not only of the punishment but also removes all legal disabilities arising from conviction. For example, loss of public office due to conviction is reversed.

This was clarified in Deputy Inspector General of Police v. Rajaram (1959), where the court held that a pardon places the individual in the position as if they were never convicted.

Remission and Suspension

On the other hand, remission or suspension of sentence reduces or delays the punishment but does not remove the civil or political consequences of the conviction. The convict remains legally liable for disabilities attached to the conviction.

Judicial Review of the Governor’s Pardoning Power

While the pardoning power is primarily an executive function, it is not immune from judicial scrutiny.

Scope of Judicial Review

The Supreme Court of India has held that:

• Courts cannot interfere with the merits or wisdom of the Governor’s decision.
• Courts can intervene only if the power is exercised arbitrarily, mala fide (in bad faith), or influenced by extraneous or irrelevant considerations.

This ensures that the power is not misused and respects constitutional principles.

Grounds for Judicial Intervention

Some of the recognised grounds where courts may examine the Governor’s orders include:

• Lack of application of mind: If the decision is made without proper consideration of relevant facts.
• Mala fide exercise: If clemency is granted due to political, religious, caste, or other extraneous reasons.
• Fraud or suppression of facts: If the clemency was obtained through deceit.
• Jurisdictional overreach: If the Governor exercises power beyond State executive jurisdiction.

Important Case Laws

• Ramanaiah v. Superintendent, Central Jail, Rajahmundry (1974): Clarified that Governor cannot pardon offences under Union jurisdiction.
• Epuru Sudhakar v. Government of Andhra Pradesh (2006): Pardoning power cannot be exercised arbitrarily or with mala fide intent.
• Devender Pal Singh Bhullar v. NCT Delhi (2013): Courts cannot re-examine the merit but ensure the power was not exercised in violation of constitutional norms.

Interaction with Statutory Remission under the Criminal Procedure Code (CrPC)

The Criminal Procedure Code (CrPC) contains provisions for remission and suspension of sentences under Sections 432 to 433A.

Independence of Article 161 from CrPC

The Supreme Court has emphasised in Union of India v. V. Sriharan (2016) that:

• The Governor’s constitutional clemency power under Article 161 is independent and can override the statutory remission rules under the CrPC.
• For instance, the Governor may pardon a prisoner even if they have not served the minimum 14 years required for statutory remission under Section 433A.

Thus, Article 161 is a residual and overriding power.

Limitations on the Governor’s Pardoning Power

While broad, Article 161 is not without limits.

Death Sentence Cases

• The Governor cannot grant a full pardon in death penalty cases.
• The Governor may commute, remit, or reprieve the sentence.
• The President has exclusive authority to pardon death sentences.

Non-Interference with Judicial Verdicts

• Clemency orders do not overturn convictions.
• Remission or pardon modifies the sentence but does not nullify the judicial decision.
• Pending appeals are not barred; courts maintain their jurisdiction.

Article 361 Protection

• Article 361 grants the Governor immunity from legal proceedings personally.
• However, courts can issue writs against implementing officers if clemency orders violate constitutional principles.

Procedure for Granting Clemency by the Governor

Filing Petition

• Convicted persons, or interested parties, may submit a mercy petition to the State Home Department.
• Supporting documents such as trial records, prison conduct, and medical reports may accompany the petition.

Advice of Council of Ministers

• The Governor generally acts on the advice of the Council of Ministers.
• This ensures executive accountability and policy coherence.

Decision and Communication

• The Governor issues a written order specifying the form of clemency granted.
• The State Home Department notifies the prison and other relevant authorities for implementation.

Landmark Cases Related to Pardoning Power of Governor under Article 161 of Constitution

Swaran Singh v. State of U.P. (1998)

• The Supreme Court struck down a remission granted arbitrarily and mala fide to a State Minister convicted of murder.
• Held that judicial intervention is warranted when constitutional principles are violated.

Perarivalan Case

• Perarivalan was sentenced to death for the assassination of former Prime Minister Rajiv Gandhi.
• His sentence was commuted to life imprisonment, and after long pending mercy petitions, the Supreme Court ordered his release, affirming the binding nature of the State Cabinet’s recommendation on the Governor.

K.M. Nanavati v. State of Bombay (1961)

• The Governor suspended the sentence of a convict pending Supreme Court appeal.
• The Court held that clemency powers cannot obstruct judicial process once the matter becomes sub judice.

Conclusion

The pardoning power under Article 161 is a powerful constitutional tool vested in the Governor to temper justice with mercy. It safeguards against the rigidity of law and allows correction of judicial errors or harshness in deserving cases.

However, this power is carefully balanced by constitutional limits and judicial oversight. The Governor’s power:

• Is confined to State offences.
• Cannot override court verdicts.
• Is subject to judicial review to prevent misuse.

Understanding this balance is crucial for appreciating the dynamic between the executive clemency and the judiciary in India’s constitutional framework.