Judicial Powers of Governor: Pardoning Power (Article 161)

Governor pardoning power refers to the authority conferred by Article 161 of the Constitution on the Governor of a state to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute a sentence, for any offence against a law relating to a matter to which the state's executive power extends. It is the primary judicial-type function the Constitution assigns to the Governor, and it sits alongside — but is narrower than — the President's parallel power under Article 72.

What Article 161 Says

Article 161 provides: "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."

Scope: Only State-Law Offences

The clemency power under Article 161 is tied to the extent of the state's own executive power. It reaches offences against laws on matters within the state's executive competence; it does not extend to offences under laws on subjects that fall outside that competence, such as Union subjects.

Categories of Relief Available

Article 161 groups several distinct forms of relief:

• Pardon — removes both the sentence and the conviction, restoring the person as if the offence had not occurred.
• Reprieve — a temporary postponement of the execution of a sentence, typically to allow time for a mercy petition or appeal.
• Respite — awarding a lesser sentence in place of the original one, often on special grounds such as the convict's physical condition.
• Remission — reducing the period of a sentence without changing its character.
• Commutation — substituting one form of punishment for a lighter one, for example converting a death sentence into life imprisonment.

How the Governor's Power Differs from the President's (Article 72)

Although Article 161 and Article 72 read similarly, the Governor's power is narrower in respects that flow directly from the state's more limited executive competence:

This distinction — that only the President can grant an outright pardon in a death-sentence case, while a Governor may suspend, remit, or commute such a sentence but not extinguish it altogether — is one of the most frequently tested points of comparison between the two offices.

Exercised on the Aid and Advice of the Council of Ministers

Article 161 does not appear among the matters the Constitution expressly reserves to the Governor's discretion. Consistent with the general rule in Article 163(1) — that the Governor acts on the aid and advice of the Council of Ministers except where discretion is constitutionally required — the pardoning power is exercised on ministerial advice, not as a personal or discretionary act of the Governor. The Supreme Court's ruling in Shamsher Singh v State of Punjab (1974), holding that the Governor must act on the aid and advice of the Council of Ministers except in the narrow discretionary sphere, governs the exercise of Article 161 as it does the Governor's other functions.

Judicial Review

The exercise of the pardoning power is not entirely beyond judicial scrutiny. Courts have generally held, in relation to the analogous presidential power under Article 72, that while there is no right to an oral hearing before a mercy decision and the authority may re-examine the evidence independently of the courts, the exercise of the power can still be reviewed where the decision is shown to be arbitrary, irrational, mala fide, or discriminatory. The same limited standard of review is understood to apply to the Governor's exercise of Article 161.

UPSC Relevance

Prelims: Exact text of Article 161; the five forms of relief (pardon, reprieve, respite, remission, commutation); the key exclusions — court-martial sentences and full pardon of a death sentence — that distinguish Article 161 from Article 72.

Mains (GS-II): Executive clemency as a check within the separation of powers; the limits of judicial review over pardoning decisions; comparative analysis of gubernatorial and presidential pardoning powers and their federal implications.

FAQ

Q1. What does Article 161 empower a Governor to do? It empowers the Governor to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute sentences, for offences against laws relating to matters within the state's executive power.

Q2. Can a Governor pardon a death sentence? No. A Governor may suspend, remit, or commute a death sentence, but only the President, under Article 72, can grant a full pardon in a death-sentence case.

Q3. Can a Governor pardon a sentence given by court-martial? No. Court-martial sentences fall exclusively within the President's pardoning power under Article 72, since defence is a Union subject.

Q4. Does the Governor exercise the pardoning power personally? No. It is exercised on the aid and advice of the state Council of Ministers, headed by the Chief Minister, like the Governor's other non-discretionary functions.

Q5. Is the Governor's pardoning decision subject to judicial review? Yes, though narrowly — courts can intervene where a pardoning decision is arbitrary, irrational, mala fide, or discriminatory, but do not otherwise sit in appeal over the merits of the decision.

Quick Revision

• Article 161: Governor can pardon, reprieve, respite, remit or commute sentences for state-law offences.
• Cannot pardon court-martial sentences (Union/defence subject).
• Cannot grant a full pardon of a death sentence — may only suspend, remit, or commute it.
• Exercised on aid and advice of the Council of Ministers (Article 163), not as personal discretion.
• Article 72 is the President's broader, parallel power, covering Union-law offences, court-martial sentences, and full pardon of death sentences.
• Judicial review is limited to cases of arbitrariness, irrationality, mala fide exercise, or discrimination.

Sources

• The Constitution of India, Article 161 (and Article 72 for comparison) — legislative.gov.in

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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