Remission Power of the Governor, Article 161 and Important Cases

Understand the remission power of the Governor in India, its constitutional basis, scope, and limitations in granting relief in criminal sentences under the justice system.

Table of Contents

Context: A full bench of the Madras High Court in Eswaran vs State Judgement has held that the Governor is bound by the advice of the Council of Ministers, which exercises powers under Article 161 of the Constitution on remission and premature release of convicts.

Remission Power of the Governor

Article 161 grants the Governor the power to grant pardons, to suspend, remit or commute a sentence to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Power	Impact on Sentence
Pardon	Removes both the sentence and the conviction entirely.
Remission	Reduces the duration of the sentence but keeps the nature of the punishment the same.
Commutation	Change the punishment to a lighter form.
Respite	Award a lesser sentence due to the special circumstances of the convict.
Reprieve	Provides a temporary stay on the execution of a sentence.

Also Read: Details about Governors of the States

Conflicting Views on Governor’s Discretion under Article 161

Case	Details
A. G. Perarivalan vs. State through Superintendent of Police	Governor is bound by the advice of the State Cabinet in the exercise of his powers under Article 161 of the Constitution
M. P. Special Police Establishment vs State of MP	Article 161 permits the Governor to act in his own discretion when, on facts, bias becomes apparent, or the decision of the State Cabinet is shown to be irrational.

Important Case Laws

Case	Details
Maru Ram vs UoI (1981)	Established that the Governor is the formal head of the executive, but is incapable of acting except on the advice of the Council of Ministers. (Constitution Bench Judgement)
Shamsher Singh vs State of Punjab (1974)	7 Judge Bench Judgement by SC held that the Governor is a shorthand expression for the State Government.
A.G. Perarivalan vs State (2004)	Advice of the State Cabinet is binding on the Governor for powers under Article 161. It also ruled that an inexplicable delay by the Governor in exercising this power is subject to judicial review.
Epuru Sudhakar vs Govt. of A.P. (2006)	Established that if the Council of Ministers acts irrationally or ignores relevant factors, the Court must exercise judicial review; it is not open for the Governor to act in his own discretion.

Key Takeaways from Eswaran vs State Judgement

Binding nature of advice: The Governor is strictly bound by the advice of the Council of Ministers regarding remission and premature release.
No discretion of Governor: The Governor cannot exercise discretion to take a different view, regardless of whether they personally agree with the advice.
Judicial review of irrational advice by Council of Ministers: If the Council of Ministers acts irrationally or fails to consider relevant factors, the remedy lies in judicial review by the Courts, not in the Governor’s independent discretion.