Context
- Recently, a Full Bench of the Madras High Court ruled that the Governor of a State is strictly bound by the “aid and advice” of the State Council of Ministers while exercising powers under Article 161 of the Constitution.
- The Court clarified that the Governor, regardless of personal opinion, cannot exercise independent discretion or take a different view from the Cabinet regarding the remission and premature release of convicts.
1. Scope of Article 161
Article 161 of the Indian Constitution empowers the Governor of a State to grant:
- Pardon: Completely absolves the convict from the sentence and the conviction.
- Reprieve: A temporary stay on the execution of a sentence.
- Respite: Awarding a lesser sentence in place of one originally awarded due to special facts (e.g., pregnancy or physical disability).
- Remission: Reducing the period of the sentence without changing its character (e.g., reducing two years of rigorous imprisonment to one year).
- Commutation: Substituting one form of punishment for a lighter form (e.g., rigorous imprisonment to simple imprisonment).
2. Limitations on Article 161
- Jurisdiction: The power extends only to matters to which the executive power of the State extends (offences against State laws).
- Death Penalty: Unlike the President, the Governor cannot pardon a death sentence. However, the Governor can suspend, remit, or commute a death sentence.
- Court Martial: The Governor has no power to grant clemency in cases of punishment by a Military Court (Court Martial).
Recent Madras High Court Judgement (April 2026)
The Full Bench of the Madras High Court addressed whether the Governor has any “discretionary” power to reject a Cabinet recommendation for premature release.
Key Highlights of the Ruling:
- Binding Nature of Advice: The court held that the Governor is constitutionally obligated to follow the State Cabinet’s recommendation. The phrase “aid and advice” under Article 163 is mandatory for the exercise of powers under Article 161.
- No Independent Discretion: The Bench ruled that under no circumstances can the Governor take a view different from the Council of Ministers in matters of remission.
- Reliance on Precedents: The High Court relied heavily on the Supreme Court’s landmark judgements in Maru Ram v. Union of India (1980) and AG Perarivalan v. State of Tamil Nadu (2022), which established that the executive power of the Governor is actually the power exercised by the State Government.
Comparative Analysis: President vs. Governor
| Feature | President (Article 72) | Governor (Article 161) |
| Law under which offence is committed | Offences against Union Laws. | Offences against State Laws. |
| Death Sentence | Can grant Pardon, commute, or remit. | Cannot Pardon; can only commute, remit, or suspend. |
| Court Martial | Can grant clemency for Military Courts. | No power regarding Court Martial. |
| Binding Advice | Bound by Union Cabinet advice. | Bound by State Cabinet advice. |
Q. Consider the following statements regarding the Pardoning Power of the Governor in India:
Statement-I: The Governor of a State has the power to pardon a death sentence if the offence is against a law to which the executive power of the State extends.
Statement-II: The Madras High Court recently ruled that the Governor is bound by the aid and advice of the Council of Ministers while exercising powers under Article 161.
Which one of the following is correct in respect of the above statements?
A) Both Statement-I and Statement-II are correct and Statement-II is the correct explanation for Statement-I.
B) Both Statement-I and Statement-II are correct and Statement-II is not the correct explanation for Statement-I.
C) Statement-I is correct but Statement-II is incorrect.
D) Statement-I is incorrect but Statement-II is correct.
Answer: D
Solution:
• STATEMENT-I IS INCORRECT: According to the Constitution and clarified by various Supreme Court judgements, the Governor cannot pardon a death sentence. Only the President of India has the power to pardon a death sentence under Article 72. The Governor can only suspend, remit, or commute a death sentence.
• STATEMENT-II IS CORRECT: The Madras High Court Full Bench in April 2026 reaffirmed that the Governor must act strictly according to the Cabinet's advice under Article 161 and has no independent discretionary power in these matters.
