Article 161

Article 161 of the Constitution of India empowers the Governor of a State to grant pardons, reprieves, respites, remissions, or commutations of punishment for offenses against laws that fall within the executive power of the State. This provision reflects the principle of mercy in justice, allowing a humanitarian review of criminal sentences where strict legal enforcement might result in undue hardship or injustice.

Constitutional Text

Article 161 reads:

“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 offense against any law relating to a matter to which the executive power of the State extends.”

Purpose and Objective

Article 161 is a constitutional safeguard designed to temper justice with mercy. While the judiciary interprets and applies the law, this Article provides an opportunity for the executive to intervene in exceptional cases where circumstances—such as humanitarian concerns, miscarriages of justice, or considerations of public interest—warrant leniency.
The power embodies the spirit of equity and compassion within India’s criminal justice system, ensuring that legal rigidity does not overshadow justice and fairness.

Scope of the Governor’s Power

The clemency powers under Article 161 are coextensive with the Governor’s executive authority and apply only to offenses against State laws. This means that:

• The Governor can grant clemency in cases involving laws falling within the State List of the Seventh Schedule.
• The power does not extend to offenses against Central laws or cases tried by Central agencies, where similar powers are exercised by the President of India under Article 72.

For example:

• A person convicted under the Indian Penal Code (IPC), which applies to both Central and State jurisdictions, may seek clemency from either the President or the Governor, depending on the nature of the case and the authority of enforcement.
• However, for offenses under Central laws such as the Prevention of Terrorism Act (POTA) or the Narcotic Drugs and Psychotropic Substances (NDPS) Act, only the President has the power of clemency.

Types of Clemency Powers under Article 161

The Constitution recognises five distinct forms of clemency that the Governor may grant:

1. Pardon:
   • Complete forgiveness of the offense.
   • Removes both the punishment and the disqualifications arising from the conviction.
   • The person is restored to their original legal status as if no offense had been committed.
2. Reprieve:
   • Temporary postponement of a sentence, usually of death, to allow time for reconsideration or appeal.
3. Respite:
   • Reduction in the severity of a sentence due to special circumstances, such as pregnancy, ill health, or old age.
4. Remission:
   • Reduction in the duration of a sentence without altering its character (e.g., from 10 years to 7 years).
5. Commutation:
   • Substitution of a lesser form of punishment for a more severe one (e.g., replacing a death sentence with life imprisonment).

These forms of clemency collectively allow the Governor to tailor relief according to the gravity of the offense, circumstances of the offender, and public interest.

Constitutional Relationship with the President’s Powers

• The President of India exercises similar powers under Article 72, applicable to:
  • Offenses against Central laws,
  • Cases under the jurisdiction of the Union Executive,
  • Court-martial sentences, and
  • Death penalty cases.
• The Governor’s powers under Article 161 are limited to State jurisdiction but may also extend to cases involving death sentences passed under State laws.

Both Articles 72 and 161 reflect India’s federal structure, where mercy powers are shared between the Union and the States.

Limitations and Conditions

1. Scope of Executive Power:
   • The Governor can act only within the matters under the State’s executive jurisdiction, not those reserved for the Union.
2. Governor Acts on Advice:
   • As per Article 163, the Governor must exercise powers on the aid and advice of the Council of Ministers.
   • The Governor does not act independently; the clemency decision represents the collective will of the State Government.
3. Judicial Review:
   • Though the clemency power is discretionary, it is not beyond judicial scrutiny.
   • Courts can review whether the power was exercised:
     • Arbitrarily,
     • In bad faith, or
     • Without due consideration of relevant facts.
4. No Override of Judicial Process:
   • The Governor’s clemency does not undermine or nullify the judiciary’s authority. It merely provides a humanitarian check on the severity of the sentence.

Judicial Interpretation and Landmark Judgments

1. Maru Ram v. Union of India (1980):
   • The Supreme Court clarified that the clemency powers under Articles 72 and 161 are to be exercised on the advice of the respective Council of Ministers.
   • The Court emphasised that these powers are discretionary but not arbitrary, and must be exercised judiciously.
2. Kehar Singh v. Union of India (1989):
   • Although this case pertained to Article 72, the Court held that the executive’s power of pardon is an act of grace, not of right.
   • The President or Governor can re-examine evidence to determine if mercy is justified.
3. Shatrughan Chauhan v. Union of India (2014):
   • The Supreme Court held that undue delay in deciding mercy petitions amounts to a violation of Article 21 (Right to Life), warranting commutation of the death sentence.
4. State of Madhya Pradesh v. Ramesh Kumar Bhargav (2001):
   • The Court reiterated that the Governor’s powers under Article 161 are subject to constitutional limitations and can be exercised only within the scope of State laws.
5. Epuru Sudhakar v. Government of Andhra Pradesh (2006):
   • The Court held that clemency powers are subject to judicial review if exercised on irrelevant, arbitrary, or mala fide grounds.

Procedure for Granting Clemency

The process of clemency under Article 161 typically follows these steps:

1. Submission of Petition:
   • The convict or their family submits a mercy petition to the Governor through the State Home Department.
2. Examination by the State Government:
   • The petition is examined by the State’s Council of Ministers or Home Department for recommendations.
3. Consultation:
   • In some cases, the Governor may consult the judiciary or legal experts to ensure fairness.
4. Decision by the Governor:
   • Based on the recommendations, the Governor may decide to grant or deny clemency.
5. Implementation:
   • If approved, the clemency order is issued and executed by the relevant authorities, leading to remission, commutation, or pardon as applicable.

Significance of Article 161

1. Humanitarian Function:
   • Recognises the possibility of judicial error and allows for compassion in exceptional cases.
2. Instrument of Justice:
   • Balances the rigidity of law with equitable relief, aligning justice with fairness and mercy.
3. Executive Oversight:
   • Serves as a mechanism for the executive to correct injustices that may result from technical or procedural judicial decisions.
4. Federal and Constitutional Balance:
   • Strengthens India’s federal structure by granting both the President and Governors analogous powers within their jurisdictions.
5. Rehabilitation and Reform:
   • Reflects the principle that punishment should be reformatory, not purely retributive, offering convicts a chance for reintegration into society.

Controversies and Challenges

• Political Misuse: Clemency powers have occasionally been criticised for being influenced by political or populist considerations.
• Delays in Mercy Petitions: Inordinate delays have been challenged as violations of Article 21.
• Lack of Transparency: The decision-making process often lacks public accountability.
• Judicial vs. Executive Conflict: Occasional tensions arise between the judiciary and executive regarding the limits of mercy powers.

The Supreme Court, through various judgments, has repeatedly called for transparency, consistency, and constitutional propriety in exercising clemency.

Relationship with Article 72

This comparative structure reflects India’s dual system of clemency, rooted in the distribution of executive powers between the Union and States.

Recent Developments

• In recent years, the Supreme Court and State Governments have emphasised the need for timely disposal of mercy petitions and greater procedural transparency.
• Debates continue over whether clemency decisions should be subject to more detailed guidelines to prevent arbitrariness and political influence.
• Notable clemency cases, such as those involving Rajiv Gandhi assassination convicts, have reignited discussions about the balance between justice and mercy.