Article 161 of the Indian Constitution confers upon the Governor of a State the power to grant various forms of clemency, such as pardons, reprieves, respites, and remissions of punishment, or to suspend, remit, or commute sentences. This power is exercisable in cases where a person has been convicted of an offence against any law relating to a matter to which the executive power of the State extends.
This article is a crucial aspect of the executive powers vested in the Governor, enabling them to dispense justice in certain circumstances, often as a measure of mercy or rectification of potential errors in the judicial process. It is analogous to the power granted to the President of India under Article 72 of the Constitution.
Original Text
Article 161: Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases
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.
Detailed Explanation
Article 161 empowers the Governor of a State with specific clemency powers. This power extends to individuals convicted of offences against laws that fall under the executive competence of the state government. The article lists different forms of clemency the Governor can grant:
- Pardon: A pardon completely absolves the offender from all sentences and punishments and restores their civil rights. It removes both the sentence and the conviction and makes the offender innocent in the eyes of the law.
- Reprieve: This grants a temporary stay of execution of a sentence, particularly a sentence of death. Its purpose is to allow the convicted person time to seek a pardon or commutation from the appropriate authority.
- Respite: This denotes awarding a lesser sentence in place of one originally granted due to some special facts, such as the physical disability of a convict or the pregnancy of a woman offender.
- Remit: Remission means reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for five years may be remitted to rigorous imprisonment for three years.
- Suspend, Remit, or Commute:
- Suspend: To temporarily stop the execution of a sentence.
- Remit: Same as remission mentioned above.
- Commute: To substitute one form of punishment for a lighter form. For example, rigorous imprisonment may be commuted to simple imprisonment, or a death sentence may be commuted to rigorous imprisonment.
The scope of the Governor’s power under Article 161 is limited to offences against laws relating to matters to which the executive power of the state extends. This means the Governor cannot exercise this power for convictions under Union laws, except where those laws also fall under the concurrent list and the executive power of the state extends to them, and there is no specific prohibition or conflicting provision in Union law.
There is a crucial distinction between the Governor’s power under Article 161 and the President’s power under Article 72, particularly concerning death sentences. While the President can pardon a death sentence in all cases (under Article 72(1)(b)), the Governor cannot. However, Article 72(3) states that nothing in Article 72(1)(c) (President’s power over court-martial sentences) shall affect the power to suspend, remit, or commute a sentence of death exercisable by the Governor under any law for the time being in force. This implies that while the Governor cannot pardon a death sentence, they can suspend, remit, or commute a death sentence if the conviction is under a state law and such power is permissible under state law or general principles.
The power under Article 161 is not a personal power of the Governor but is exercised on the aid and advice of the Council of Ministers of the State. The Supreme Court has clarified that this power is subject to judicial review, though on limited grounds such as the order being arbitrary, irrational, discriminatory, malafide, or passed without considering relevant material or based on irrelevant considerations.
Detailed Notes
- Source of Power: Article 161 of the Indian Constitution.
- Recipient of Power: The Governor of a State.
- Scope of Power:
- Applies to persons convicted of an offence.
- Limited to offences against laws relating to a matter to which the executive power of the State extends.
- Types of Clemency Powers:
- Pardon: Abolishes conviction and sentence; restores civil rights.
- Reprieve: Temporary stay of execution of sentence (especially death).
- Respite: Awarding a lesser sentence due to special circumstances (e.g., physical disability, pregnancy).
- Remission: Reducing the term of sentence without changing its character.
- Suspend: Temporarily stopping the execution of a sentence.
- Remit: Same as remission.
- Commute: Substituting a severer punishment with a lighter one.
- Comparison with President’s Power (Article 72):
- Both President and Governor have similar clemency powers.
- Key Difference (Death Sentences):
- President can pardon, reprieve, respite, remit, suspend, or commute a death sentence in ALL cases (Union/State law offences).
- Governor CANNOT pardon a death sentence.
- Governor CAN suspend, remit, or commute a death sentence if the offence is against a state law and falls within the state’s executive power, as per Article 72(3).
- Another Difference (Court-Martial): President has power over sentences by court-martial (Article 72(1)(c)); Governor does not.
- Nature of Power:
- Executive power, not judicial, but impacts judicial decisions.
- Exercised by the Governor on the aid and advice of the State Council of Ministers (as established by the Supreme Court in Shamsher Singh vs State of Punjab, 1974).
- Decisions are justiciable, but judicial review is limited.
- Judicial Review:
- The Supreme Court has held that the Governor’s decision under Article 161 is subject to judicial review.
- Grounds for review are narrow, including:
- Order being arbitrary, irrational, or discriminatory.
- Order passed without application of mind.
- Order based on irrelevant considerations or non-consideration of relevant material.
- Malafide exercise of power.
- The Court cannot scrutinize the merits of the decision (e.g., whether a pardon should or should not have been granted) but can review the process by which the decision was made. (Epuru Sudhakar & Ors vs Govt. of A.P. & Ors, 2006).
Additional Comments
- The power granted under Article 161 is an act of grace and mercy, intended to correct potential judicial errors or provide relief in deserving cases.
- The Governor’s power to commute, remit, or suspend death sentences under certain conditions (state law offence) is a fine point of distinction from the President’s power to pardon death sentences, which is exclusive and absolute.
- While the power is exercised on the advice of the Council of Ministers, the Governor must still apply his/her mind to the case, even if briefly, before accepting the advice. Decisions cannot be mechanical.
- There have been instances where the exercise of this power has led to controversies, often raising questions about the balance between executive clemency and judicial finality.
Summary
Article 161 empowers the Governor of a State to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute sentences for offences against state laws. This executive clemency power is exercised on the advice of the State Council of Ministers and is subject to limited judicial review on grounds such as arbitrariness or mala fides. While similar to the President’s power under Article 72, the Governor cannot pardon a death sentence, although they may suspend, remit, or commute it if the conviction is under a state law.