Revision summary
Article 72 gives the President clemency over Union offences, courts-martial, and death sentences. Article 161 gives the Governor clemency only where the State’s executive power extends. The Governor cannot pardon a death sentence; only suspend, remit, or commute it. Both act on Council of Ministers’ advice, not as a personal monarch. Armed-forces and Union-law sentences stay off the Governor’s file.
Model answer
Introduction
Clemency is an executive power, not a judicial rehearing. Article 72 vests it in the President; Article 161 vests a narrower power in the Governor. The difference is territorial, subject-matter, and the death sentence.
Body
Article 72 compared with Article 161
- The President may pardon, reprieve, respite, remit, suspend, or commute a sentence in three fields: offences against Union law, sentences of courts-martial, and all death sentences.
- The Governor, under Article 161, may use the same kinds of relief only for offences against a law to which the executive power of the State extends, that is, mainly State List and Concurrent matters in the State field.
- A Governor cannot pardon a death sentence. The Governor may suspend, remit, or commute it, but pardon of death stays with the President under Article 72(1)(c).
How the two offices actually use the power
- Both act on the aid and advice of their Council of Ministers, as the Court held in Maru Ram and later in Epuru Sudhakar; clemency is not a personal royal grace.
- Nanavati and later Swaran Singh warn that the Governor cannot sit as a second trial court or ignore the facts the ministry places on the file.
- Union offences and armed-forces sentences never enter the Raj Bhavan file, which is the cleanest operational difference from Rashtrapati Bhavan.
Flow diagram
flowchart TD P[Article 72 President] --> U[Union offences] P --> M[Court martial] P --> D[Death sentence pardon] G[Article 161 Governor] --> S[State-field offences] G --> C[Suspend remit commute death] C -.-> D
Conclusion
The Governor’s pardon is a State-field copy of Article 72, cut off from courts-martial, Union offences, and the pardon of death. Both heads of State act on ministerial advice; the President’s Article 72 basket is simply wider.
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Students also ask
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"Transparency and Accountability are complementary to each other." Comment.
Next question in the 2023 paper (Q5). View answer →
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Can a Governor pardon a sentence under a Central Act?
Only if the offence is one to which the State’s executive power extends. Pure Union-field offences belong to Article 72.
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Is clemency the same as an appeal?
No. Appeal is judicial. Clemency is executive mercy after the judicial process, used on ministerial advice.
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