The Governor, the Executive Head of a State, is appointed by the President. Under Indian Constitution, Governor possesses diverse legislative, financial, executive and judicial powers. The power of granting pardons is the judicial power of the Governor. The pardoning power of Governor is executed based on promoting public welfare. The power of a Governor to pardon a convict’s sentence under Article 161 of the Indian Constitution is similar to the power placed on the President under Article 72 and is considered a constitutional duty. It is to be noted that the power of granting pardon is a duty and not any privilege granted.
Pardoning is considered a British period primordial concept of delivering mercy or forgiveness to a person accused of any crime. It was considered a Royal Prerogative of the monarch. Pardoning power has been bestowed as a constitutional duty to ensure that justice, when delivered through harsh punishments that might stem into an unfairness to humanity, must be suspended, remitted, commuted or reprieved to prevent the unjust. A contemporary ruling reflects the prominence of the governor’s pardoning power that overrides the provision of Section 433A as enumerated in the Criminal Procedure Code, 1973. The section mandates that a convict’s sentence is subject to pardon only after serving 14 years in prison. However, in 2021 the Supreme Court ruled out such contention. It held that the Governor possesses the power to pardon the sentence of the convicts in addition to those on death sentence even before they have completed their term of 14 years in prison. Henceforth, the pardoning power has been marked as an act of grace pertinent to every civilised country’s legal system.
Pardon Power of Governor
Pardon being a tool of mercy, is utilised by the Governor of a state in the following ways:
- Possesses the authority to pardon, commute, respite, reprieve, suspend and remit the punishment or sentence of any convict convicted of an offence related to the state law wherein the executive power extends.
- Governor lacks the authority to pardon a death sentence. However, the Governor possesses the authority to commute, remit and suspend a death sentence.
- Governor has no authority to grant pardon, reprieve, respite, suspension, remission, or commutation of punishment or sentence imposed by a court-martial (military court).
- Possesses the authority to grant pardon to an accused in the course of trial as also in the event of pre and post-trial for the cases related to criminal contempt of court, whether with or without any conditions. However, in the case of punishments issued by the judicial examination, the Governor possesses no authority to pardon such sentences or matters exclusively confined to the Union’s jurisdiction.
Types of Pardons Governor Grants
1. Pardon: The power of pardon that the President possesses under Article 72 is relatively more comprehensive in scope compared to the governor’s pardoning power under Article 161. The pardoning power of Governor exonerates both the sentences and punishments. However, a Governor cannot pardon the punishment awarded by the military court. The State Government exercises the pardoning power of Governor. However, considering the business rules, constitutionalism and other administrative protocols, the governor’s approval is taken before exercising the pardoning power by the State Government.
2. Reprieve: By exercising the pardoning power of “Reprieve”, the Governor puts a stay on the execution of a convict’s sentence for a temporary period; thereby allowing the convict to utilize the span seeking pardon or commutation of his sentence from the Governor.
3. Commute: Governor has the power to commute the sentence of any person convicted of an offence, including commute of death sentences.
4. Respite: The Governor’s pardoning power of respite is meant to award a lesser punishment to a convict instead of a severe or harsher punishment initially rewarded to him.
5. Remit: In this type of pardoning power, the Governor does not change the nature of punishment, unlike the power of pardon in reprieve. Keeping intact the nature of punishment, the Governor reduces the term of the sentence. Remission, when granted, is permanent in contrast to respite, which is temporary.
Constitutionality of Pardoning Powers
Constitution is the paving stone of all other laws. Hence, it is the mother law from which all other laws derive their authority and power. The scope of Article 161 is more comprehensive than that of Article 142. The power contained in Article 161 is also present in Article 142, which describes the provisions relating to the power of suspension of sentences during the period when the matter is awaiting judicial determination. Therefore, based on the concept of harmonious construction and to avoid a conflict between Article 161 and 142, it has been held that Article 161 shall not intervene with the power of suspension of sentences until Article 142 operates and the matter related to suspension is subject to judicial determination. A prisoner is not eligible for remission of sentences during the span he is on bail, or his sentence has been suspended temporarily. To get the benefit of a remission order issued under Article 161, a convict has to surrender voluntarily at the jail after the expiry of the bail.
The State Governor has unconstrained power under Article 161 to grant pardons, reprieves, and remissions. This power is not subject to any modifications, alterations or intervention by any other statutes or its provisions. However, it is also not subject to any arbitrary execution for any malafide purpose. If the power under Article 161 is exercised malafidely, that would solely disregard the pillar of constitutionality; thereby, it shall highly fail the approval of the law, which would, in extension, be the subject of judicial concern.
Since the Constitution has conferred the governor’s pardoning power, it is subject to judicial review on specifically limited grounds. The question often arises as to whether the area of the Governor’s power under Article 161 falls within the judicial domain and is subject to judicial review. Judiciary shall intervene wherein an order passed by the Governor in the exercise of his power under Article 161 is found to be lacking the approval of the Government, outstripping the jurisdiction in the course of exercising the pardoning power, passing of order mechanically without proper application of mind, exercising the power of pardon malafidely, or passing of order under some irrelevant consideration to permit the quashing the order of sentence or conviction passed by the Supreme Court.
Difference Between Article 72 & Article 161
The purview of Article 72 is broader than that of Article 161 in terms of their implementation, as has been described in the following two cases:
1. Death Sentence
President, under Article 72, can grant pardon in all cases, even in the event of death sentences. However, the governor’s pardoning power does not extend to matters of death sentences.
2. Court Martial
President can grant a pardon in all cases, even when a military court awards the punishment. In contrast, under Article 161, Governor lacks jurisdiction to intervene with the punishment awarded by a Court Martial.
The governor’s pardoning power could release the prisoners absolutely from the convictions and sentences so pardoned. However, the governor cannot rationalise a prisoner’s sentence via any legal process.
Contentions of Judiciary
1. Perarivalan case
Perarivalan was convicted for the rubout of Prime Minister Rajiv Gandhi and was awarded a death sentence for perpetrating offences under the Indian Penal Code, the Arms Act, 1951; the Wireless Telegraph Act, 1933; the Explosive Substances Act, 1908; the Foreigners Act, 1946, and the Terrorist and Disruptive Activities (Prevention) Act, 1987. In the year 2014, the death sentence of the convict was commuted to life imprisonment by the Supreme Court. A petition to remit the accused’s sentence under Article 161 remained pending before the State Cabinet for two and a half years. However, the Supreme Court ordered the release of the accused by invoking Article 142 and thereby held that the State Cabinet’s advice to pardon the accused’s sentence is obligatory on the Governor as per the provisions under Article 161 of the Constitution.
2. Epuru Sudhakar v. State of Andhra Pradesh
Accused was awarded a death sentence for murdering a political opposition party member. The High Court of Andhra Pradesh further confirmed the sentence awarded to the accused. The Supreme Court thereafter quashed the pardon granted to the accused by the Governor and held that any exercise of pardoning power on the grounds of caste, religion and political considerations should be considered arbitrary and frivolous. Therefore, the Governor’s order was subject to contest since it was made with a malafide consideration on political grounds.
3. Swaran Singh v. State of Uttar Pradesh
This was the case wherein the judiciary had to intervene with the order passed by the Governor. In this case, the Governor of Uttar Pradesh granted the remission of a life sentence awarded to a Minister of the State Legislature and others for murdering one named Joginder Singh. The Supreme Court had put on hold the order of the Governor. Although the Supreme Court has no authority to intervene with the orders of the Governor made in accordance with Article 161. However, when the power under Article 161 has been utilized frivolously, with a malafide intention, or to utter disregard for the pillars of constitutionalism, it becomes indispensable for the judiciary to interfere. Therefore, when the order of the Governor passed in the exercise of his pardoning power lacks the approval of the law, the judiciary must intrude.
The Bombay High Court convicted the petitioner of murder and was awarded life imprisonment. However, the Navy held the petitioner when the High Court passed its order. Thereafter, the petitioner filed an appeal to the Supreme Court. The very same day of filing the appeal, the Governor, under Article 161, had passed the order to suspend the sentence subject to the condition that the accused must remain in prison until a further determination of the Supreme Court on his appeal. Therefore, the arrest warrant of the accused was not served and returned.
As per the regulation of the Supreme Court, the Governor’s power to suspend any sentence under Article 161 is again subject to certain standards set by the Supreme Court for specific cases wherein any appeal is pending before the Supreme Court. Therefore, while Supreme Court is considering a particular case, it is not desirable for the Governor to exercise his power to suspend a sentence. However, a Governor is at full liberty to exercise his mercy jurisdiction even when the matter is pending before the Supreme Court. The governor’s order shall be deemed valid until the case is declared as subjudice by the Supreme Court. Henceforth, the power of the Governor to suspend a sentence in the following case could not be utilised following the filing of the appeal petition and until the termination of the judicial procedure.
Pardoning power should be exercised as a token of grace and humanity in definite cases. It is pertinent for specific departments or functionaries of the Government to exercise such power of mercy; otherwise, the country will most definitely lack political morality. The foundation of pardoning power should solely be on the public good. It should be exercised to attain overall public welfare, wherein the legitimacy of a sentence shall lie on its suspension rather than on its execution. The pardoning power affects both the punishment’s nature and the sentence’s prescribed term. The word pardon means to mercy a person of his offence. Implementation of pardoning power exempts an individual from the punishment inflicted upon him for committing a crime.
Pardoning power provided to the Governor is a hope for the convicts to maintain good conduct in prison, thereby accelerating the development of prison discipline. The grant of pardon could sometimes save an innocent person from the grip of law from being punished due to failure of justice or in case of doubtful convictions. Providing space to a convict for his possible reformation rather than sentencing him could save an innocent person from being the victim of the complicated procedure of law. Therefore, the pardoning power could sometimes function as a corrective mechanism for the prisoners.
The aim of exercising the pardoning power is to rectify potential judicial errors since the judiciary is also not free from the purview of human error and imperfections. However, nowadays, the disposition of mercy petitions is delayed due to Government’s negligent approach and other political reasons. The executive’s exercise of pardoning power is an eminent tool in rectifying the errors of the judiciary in awarding sentences to a convict; it is of immense necessity to bring an amendment in the law of pardoning to ensure that the clemency petitions are disposed timely within a prescribed timeframe. Such an amendment could then prove to be an efficient and useful means of undoing the flaws of the judiciary and promoting justice with fairness.
 Deputy Inspector General of Police v. D. Rajaram AIR 1960 AP 259.
 Arun Janardhanan, ‘Explained: The story of Rajiv Gandhi assassination convict A G Perarivalan, and his mother’ (Indian Express, 19 May 2019).
 2006 8 SCC 161.
 (1998 (4) SCC 75).
1961 AIR 112.