Article 161 is the provision of the Constitution of India that empowers the Governor of a State to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence against any law relating to a matter to which the executive power of the State extends. Under Indian law, this power is the state-level counterpart of the President's pardoning power under Article 72, though it is narrower in scope.
Legal definition
Article 161 of the Constitution of India provides:
Article 161: 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 five forms of clemency under Article 161 are:
- Pardon: Completely absolves the convict of the offence, as if the conviction never occurred
- Reprieve: Temporarily stays the execution of a sentence, particularly a death sentence
- Respite: Reduces the severity of the sentence on account of special circumstances such as pregnancy or illness
- Remission: Reduces the period of sentence without changing its character
- Commutation: Substitutes a lighter form of punishment for the one originally imposed
Unlike Article 72, the Governor's power under Article 161 does not extend to sentences imposed by courts-martial or to death sentences for offences under Union law. The Governor can exercise this power only in respect of offences against laws to which the State's executive power extends.
How courts have interpreted this term
Maru Ram v. Union of India [(1981) 1 SCC 107]
The Supreme Court held that the power under Articles 72 and 161, while wide, cannot be exercised arbitrarily or mala fide. Justice Krishna Iyer observed that "no public power, including constitutional power, shall be exercisable arbitrarily or mala fide." The Court further held that the Governor must act on the aid and advice of the State Government under Article 163, and the exercise of clemency power is not a personal discretion of the Governor.
Kehar Singh v. Union of India [(1989) 1 SCC 204]
While primarily concerning the President's power under Article 72, the principles apply equally to Article 161. The Court held that the pardoning power is a constitutional responsibility, not an act of grace, and that the President (or Governor) is entitled to consider the petition on its merits and go into the evidence. The power to pardon includes the power to re-examine the evidence and the merits of the case independently.
Epuru Sudhakar v. Government of Andhra Pradesh [(2006) 8 SCC 161]
The Supreme Court laid down the most comprehensive framework for judicial review of the Governor's clemency power. The Court held that the exercise of power under Article 161 can be challenged on the following grounds: (1) the order was passed without application of mind; (2) the order was mala fide; (3) the order was based on extraneous or wholly irrelevant considerations; (4) relevant material was kept out of consideration; (5) the order suffers from arbitrariness. The Court emphasised that while the scope of judicial review is limited, it is not non-existent.
Why this matters
The Governor's pardon power under Article 161 serves as a constitutional safety valve in the criminal justice system. It addresses situations where strict application of the law may produce unjust results — for instance, where new evidence emerges after conviction, where the convict has undergone reformation, or where the penalty appears disproportionate in the circumstances.
For practitioners, understanding the scope and limitations of Article 161 is critical in post-conviction remedies. A mercy petition to the Governor is often the last resort for convicts who have exhausted all judicial remedies. The petition is addressed to the Governor but is decided by the State Government (Council of Ministers), as the Governor acts on their aid and advice under Article 163.
A common point of contention is the delay in deciding mercy petitions. The Supreme Court in Shatrughan Chauhan v. Union of India (2014) held that inordinate delay in deciding a mercy petition, particularly in death sentence cases, constitutes a ground for commutation of the death sentence to life imprisonment under Article 21. Practitioners should note that the constitutional remedy against arbitrary exercise of clemency power lies in a writ petition under Article 32 or Article 226.
Related terms
Constitutional framework:
Related powers:
Related concepts:
Frequently asked questions
What is the difference between Article 72 and Article 161?
Article 72 confers pardoning power on the President, while Article 161 confers it on the Governor. The President's power extends to offences against Union laws, sentences by courts-martial, and death sentences. The Governor's power under Article 161 is limited to offences against laws relating to matters within the State's executive power and does not extend to death sentences for Union law offences or courts-martial sentences.
Can the Governor pardon a death sentence?
The Governor can pardon a death sentence only if the conviction is under a State law. For offences under Central Acts (such as the Indian Penal Code or Bharatiya Nyaya Sanhita), the power to pardon a death sentence lies with the President under Article 72, not the Governor. In Maru Ram (1981), the Court clarified that the Governor's power under Article 161 is limited to offences against laws to which the executive power of the State extends.
Is the Governor's pardon decision subject to judicial review?
Yes, though the scope of review is limited. In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Supreme Court held that the exercise of power under Article 161 can be judicially reviewed if the order was passed without application of mind, was mala fide, was based on extraneous considerations, ignored relevant material, or was arbitrary. The court does not substitute its judgment for the Governor's but ensures the decision-making process was fair and rational.
Does the Governor exercise the pardon power personally?
No. Under Article 163 of the Constitution, the Governor acts on the aid and advice of the Council of Ministers except in matters where the Constitution expressly requires the Governor to act in discretion. The pardoning power under Article 161 is not a discretionary power, so the Governor must act on the advice of the State Government, as confirmed in Maru Ram v. Union of India (1981).
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.