Article 161 and Article 162 of the Constitution of India

Article 161 deals with the Governor's constitutional power to grant pardons, reprieves, respites and remissions, and to suspend, remit or commute sentences in specified cases. Article 162 defines the general extent of the executive power of a State.

In brief: Article 161 concerns constitutional clemency in relation to offences against laws on matters within the State's executive power. Article 162 explains the fields over which State executive power ordinarily extends, subject to the Constitution and to any executive power expressly conferred on the Union.

Article 161 - Power of Governor to grant pardons and other forms of clemency

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.

Meaning of the principal expressions

Pardon: A constitutional act of clemency that relieves a convicted person from the punishment, subject to the legal effect of the particular order.
Reprieve: A temporary postponement of the execution of a sentence.
Respite: Grant of a lesser or modified punishment because of special circumstances.
Remission: Reduction of the period or quantum of punishment without substituting a different kind of sentence.
Suspension: Temporary withholding of the operation or execution of a sentence.
Commutation: Substitution of one form of punishment with a less severe form.

Scope of Article 161

The key constitutional limitation is the subject matter of the offence. The Governor's Article 161 power extends to a conviction for an offence against a law relating to a matter to which the executive power of the State extends. The provision therefore has to be read with Article 162 and the constitutional distribution of legislative and executive powers.

The Supreme Court has repeatedly treated the clemency power as a constitutional power distinct from ordinary statutory remission. At the same time, its exercise or non-exercise is not wholly beyond judicial review. Constitutional review may arise, for example, where the decision is arbitrary, mala fide, based on irrelevant considerations, or affected by constitutionally impermissible delay.

In the exercise of Article 161, the Governor ordinarily acts on the aid and advice of the State Council of Ministers. The Supreme Court has also held that unexplained delay in acting on a State Cabinet recommendation may be subject to judicial review.

Article 162 - Extent of executive power of State

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.

Where both the State Legislature and Parliament have power to make laws on a matter, the State's executive power is subject to, and limited by, executive power expressly conferred by the Constitution or by a law made by Parliament upon the Union or its authorities.

What Article 162 means

Article 162 links State executive authority principally to the legislative competence of the State Legislature. It is, however, expressly subject to the other provisions of the Constitution. In fields where both Parliament and a State Legislature can legislate, the proviso recognises that State executive power may be limited where the Constitution or a Parliamentary law expressly confers executive power on the Union or its authorities.

Relationship between Articles 161 and 162

Article 162 helps identify the constitutional field of State executive power. Article 161 uses that field to define the Governor's clemency jurisdiction: the offence must be against a law relating to a matter to which the executive power of the State extends. Reading the two provisions together is therefore important when determining whether a particular case falls within the Governor's Article 161 authority.

Article 161 and statutory remission

Constitutional clemency under Article 161 and statutory powers relating to suspension, remission or commutation operate from different legal sources. Article 161 is a constitutional power. Statutory remission provisions are created and regulated by legislation. The Supreme Court has explained that statutory restrictions do not, by themselves, cut down the constitutional clemency power, although the constitutional power must still be exercised lawfully and for proper purposes.

Judicial review and important principles

Supreme Court decisions concerning Articles 72 and 161 establish that clemency is a constitutional function and is subject to limited judicial review. Courts do not ordinarily substitute their own decision on the merits of clemency, but may examine whether constitutional power has been exercised on legally permissible grounds and without arbitrariness, mala fides or irrelevant considerations.

In A.G. Perarivalan, the Supreme Court reaffirmed that the State Cabinet's advice is binding on the Governor in the exercise of Article 161 and that unexplained delay not attributable to the prisoner can attract judicial review.

Legal update: The constitutional text of Articles 161 and 162 remains the controlling starting point. For criminal sentence remission or commutation in an individual case, the Constitution should also be read with the currently applicable criminal procedure legislation, relevant Central or State remission policy, and binding judicial decisions.

Official and authoritative resources

For the current constitutional text, refer to the Legislative Department, Government of India - Constitution of India. For judgments interpreting Articles 161 and 162, use the Supreme Court of India and its official judgment resources.

Disclaimer: This article is for general legal information. Application of constitutional clemency and executive-power principles depends on the governing law, facts, remission policy and binding judicial decisions applicable to the particular case.