The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—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.
The ambit of article 161 is very much wider than that of article 142. It is only in a very narrow field that the power contained in article 161 is also contained in article 142, namely, the power of suspension of sentence during the period when the matter is sub judice. Therefore, on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that article 161 does not deal with the suspension of sentence during the time that article 142 is in operation and the matter is sub judice in court.
A prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. A convict in order to get the benefit of a remission order issued under article 161 has to surrender voluntarily at the jail after the expiry of bail.
The President of India under article 72 and the State Governor under article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. It should never be exercised “arbitrarily or mala fide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power”.
If power under article 161 (or 72) was exercised arbitrarily, mala fide or in absolute disregard of the inner canons of constitutionalism, the byproduct order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.5 The question as to the area of the President’s power under article 72 (and Governor’s power under article 161) falls squarely within the judicial domain and can be examined by the court by way of judicial review.
The power of granting pardon is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power being conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The court would be justified in interfering with an order passed by the Governor in exercise of power under article 161 if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order mechanically without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration just to allow the prisoner to overcome the conviction and sentence passed by the Supreme Court.
The powers of the Governor under article 161 correspond to similar powers of the President under article 72. Article 161 specifically empowers the Governor to grant pardons etc. in cases of those convicted for any offences in matters within the executive power of the State. The executive power of the State is co-extensive with its legislative power (article 162).
The Supreme Court has referred to the Constitution Bench two questions:
(i) The question whether once power of remission, under article 72 or 161 or by the Supreme Court exercising constitutional power under article 32, is exercised, is there any scope for further consideration for remission by the executive.
(ii) The question whether the Union or the State has primacy over the subject-matter enlisted in List III of Seventh Schedule for exercise of power of remission.
Source: Dr Subhash C Kashyap, Constitutional Law of India, Universal