Describe the scope 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.

Article 72

Article 72(1) provides that the President 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 three specified categories: Article 72(1)(a) covers cases where the punishment or sentence is for an offence against a law under the Union's legislative power over subjects in the Union List or Concurrent List insofar as they involve Union laws; Article 72(1)(b) covers cases where the punishment or sentence is by a court martial; and Article 72(1)(c) covers cases where the sentence is a sentence of death, regardless of which legislature enacted the law under which the conviction occurred. Article 72(2) and 72(3) clarify that nothing in Article 72(1) affects the power of a Governor under any other constitutional provision to suspend, remit, or commute a sentence of death, nor does it affect any similar power vested in any officer of the Armed Forces under existing law.

Article 161

Article 161 provides that 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. Notably, Article 161 does not carry the President's exclusive power over death sentences under Article 72(1)(c); a Governor's power extends to any offence falling within State executive competence, including one attracting a death sentence, but the President's power under Article 72(1)(c) exists concurrently and independently in respect of every death sentence in the country, irrespective of which legislature's law the conviction arose under.

The Distinctive Reach of the President's Power

The key structural distinction between the two Articles lies in the categories covered. The President's power under Article 72 extends to three situations that a Governor's power under Article 161 does not reach at all: sentences imposed by court martial, sentences under Union laws, and, most significantly, every sentence of death, whatever law it was imposed under. This means that even where a person has been convicted and sentenced to death under a State law, and even after the Governor has exercised or declined to exercise clemency under Article 161, the condemned person retains an independent right to seek a pardon from the President under Article 72(1)(c), since the death sentence category is not confined to Union laws but covers all death sentences without qualification.

Illustration of the Distinction

Consider a person convicted and sentenced to death under a State enactment dealing with a matter squarely within State legislative competence. Article 161 empowers the Governor to grant clemency in this case since it is an offence against a State law, but Article 72(1)(c) simultaneously empowers the President to do the same, since the sentence is one of death, a category the President's power reaches regardless of the source of the law. Contrast this with a person convicted of a purely regulatory economic offence under a State law carrying a term of imprisonment, not death; here only the Governor under Article 161 possesses the power of clemency, since the offence falls outside all three categories in Article 72(1) unless the matter also happens to fall under a Union law or court martial.

Nature of the Power: Executive Discretion Bound by Constitutional Norms

Both Articles confer the pardoning power to be exercised by the President or Governor, but Article 74 and Article 163 respectively require that this power, like virtually every other executive function, be exercised on the aid and advice of the Council of Ministers, and not as a matter of personal discretion of the constitutional head. The Supreme Court settled this question in Maru Ram v. Union of India, holding that the power under Article 72, though wide, is to be exercised on ministerial advice and is subject to the same requirement of being exercised fairly and reasonably as any other executive power, rejecting the notion that the President or Governor possesses some unguided personal discretion in matters of clemency.

Judicial Review of the Pardoning Power

Although the pardoning power was traditionally regarded as an act of grace beyond judicial scrutiny, the Supreme Court has firmly established that its exercise is not immune from limited judicial review. In Kehar Singh v. Union of India, the Court held that while the President's power under Article 72 is an act of clemency and the Court will not substitute its own view for that of the executive on the merits of the pardon, the Court can nonetheless examine whether the power was exercised in accordance with proper procedure, whether relevant material was considered, and whether the decision-making process was free from arbitrariness or irrationality. This principle was reinforced in Epuru Sudhakar v. Government of Andhra Pradesh, where the Supreme Court held that the exercise of clemency power under Article 161 could be judicially reviewed and, in that case, was actually set aside on the ground that the grant of remission had been made on wholly irrelevant and politically motivated considerations, holding that such orders must be based on relevant materials and cannot be arbitrary, mala fide, or discriminatory.

The Court further clarified the limited grounds of review in Shatrughan Chauhan v. Union of India, holding that undue and unexplained delay in deciding a mercy petition, whether by the Governor under Article 161 or the President under Article 72, could itself be a ground for commuting a death sentence to life imprisonment, since prolonged uncertainty and suffering caused by such delay violates the right to life and dignity under Article 21. The Court also held in Swaran Singh v. State of U.P. that a grant of remission under Article 161 could be quashed where the Governor had acted upon suppression or misrepresentation of material facts, such as the criminal antecedents of the convict, again underscoring that the power, however wide, must be founded on a genuine and complete consideration of relevant facts.

Illustration of Judicial Intervention

Suppose a Governor grants remission to a convict under Article 161 without any application of mind to the gravity of the offence or the convict's criminal history, acting instead on considerations of political expediency connected to the convict's community or political affiliations. Following the reasoning in Epuru Sudhakar v. Government of Andhra Pradesh, such an order would be liable to be quashed by the courts, since the Governor's power, though wide, cannot be reduced to an instrument of political favouritism divorced from the constitutional purpose of clemency.