Discuss the scope of power of the President and of the Governor under Articles 72 and 161 respectively relating to grant of pardons, etc., and to suspend, remit or commute sentences in certain cases.

Question: Discuss the scope of power of the President and of the Governor under Articles 72 and 161 respectively relating to grant of pardons, etc., and to suspend, remit or commute sentences in certain cases. [UPJS 2012]

Find the answer to the mains question only on Legal Bites. [Discuss the scope of power of the President and of the Governor under Articles 72 and 161 respectively relating to grant of pardons, etc., and to suspend, remit or commute sentences in certain cases.]

Answer

Article 72 of the constitution deals with the pardoning power of the President. It provides that the president of India 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 in all cases where:

1. the punishment or sentence is by a Court Martial;
2. the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
3. the sentence is a sentence of death.

Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.

On the other hand, Article 161 deals with the Pardoning Power of the Governor. It provides that the Governor has the power 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.

Noting the differences between the Pardoning Powers of the President and the Governor under Articles 72 and 161 respectively, it is clear that the scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways:

1. The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
2. The President can grant pardon in all cases where the sentence given is a sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

In Maru Ram v. Union of India [1980 AIR 2147], the Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal [1994 1 SCR 37], the Supreme Court reiterated its earlier stand in Maru Ram’s case and said that the power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the state.

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