Part VI: The States

Power of Governor to Grant Pardons

Article 161: Power of Governor to Grant Pardons

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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.

Explanation

Article 161 of the Constitution of India outlines the power vested in the Governor of a State to grant pardons, reprieves, respites, and remissions of punishment, or to suspend, remit, or commute the sentences of individuals convicted of offences. This Article reflects the concept of clemency in the Indian legal system, aligning with the broader framework of criminal justice, where the State can intervene in certain cases to mitigate the severity of a sentence or grant relief based on humanitarian or legal grounds.

Key Provisions

• Power of the Governor to Grant Pardons, etc.: The Governor holds the authority to pardon, reprieve, or remit sentences for any person convicted under laws that fall within the executive power of the State. This power is applicable to all offences that come under the purview of state laws. Pardoning entails completely absolving the person from the legal consequences of the offence, while reprieves and respites refer to temporary delays in punishment, often granted in special circumstances.
• Suspension, Remission, or Commutation of Sentences: The Governor can also suspend, remit, or commute sentences. Suspension temporarily halts the execution of the sentence, while remission reduces the amount of punishment without altering the nature of the sentence. Commutation, on the other hand, refers to substituting a lighter form of punishment for the original sentence.

Amendments and Interpretation

Article 161 remains unamended, maintaining the original intent of providing the State executive with the power to show clemency. However, the interpretation of this Article has evolved through judicial decisions and debates on federalism. The Supreme Court of India has clarified that this power is distinct from the powers vested in the President of India under Article 72, which applies to offences related to Union laws or the armed forces.

Real-Life Examples

• Rajiv Gandhi Assassination Case (2014): The Tamil Nadu Governor, based on Article 161, initiated the process to commute the death sentences of the convicts in the Rajiv Gandhi assassination case, highlighting the Governor's powers and the state's role in exercising mercy powers independently of the Union government.
• Perarivalan Case (2022): The Supreme Court upheld the Tamil Nadu Governor’s authority to grant clemency to A.G. Perarivalan, showcasing the power dynamics between the State and Union in the context of executive clemency.
• Nalini Sriharan Case: Nalini Sriharan, a convict in the Rajiv Gandhi assassination, petitioned for clemency under Article 161, demonstrating how Article 161 can be invoked in high-profile cases where public sentiment and humanitarian considerations influence legal outcomes.
• Nandini Sundar Case: In Chhattisgarh, the Governor used Article 161 to remit sentences of tribal convicts convicted of minor offences, showcasing the role of the Governor in addressing socio-economic marginalisation.

Historical Significance

The power of clemency vested in the Governor reflects a colonial legacy, tracing back to the British administration. This executive power was retained post-Independence, carefully balanced with judicial oversight. It signifies the importance of federalism in India, where the State executive has significant authority over criminal matters that pertain to State law.

Legislative History

Article 161 of the Indian Constitution, initially introduced as Article 141 in the Draft Constitution, was formally integrated into the final text of the Constitution on June 1 and October 17, 1949, after comprehensive discussions and deliberations.

Debates and Deliberations

In the Constituent Assembly, Shri T. T. Krishnamachari proposed an amendment suggesting the replacement of the phrase "with respect to which the Legislature of the State has power to make laws" with "to which the executive power of the State extends." This change aimed to clarify the Governor's authority regarding the power to grant pardons.

The amendment was debated, with members highlighting the need to clearly define the powers of the Governor in the context of State authority. The replacement of terms was considered a technical but essential clarification, ensuring that the Governor’s clemency powers were appropriately confined to matters within the State's executive jurisdiction. The amendment was eventually adopted, and this clarified version of Article 161 was incorporated into the Constitution.

References

• Constitution of India, Article 161
• Supreme Court Judgments on clemency powers, including State of Tamil Nadu v. Perarivalan
• Commentary on Constitutional Law by Durga Das Basu
• Supreme Court rulings such as A.G. Perarivalan v. Union of India
• Constitutional Law Texts by H.M. Seervai and Granville Austin