What Happened
- The Supreme Court has reiterated the settled constitutional position that the Governor is bound by the advice of the Council of Ministers when exercising power under Article 161 — the Governor's pardoning power — particularly on questions of remission of sentences and release of convicts from prison.
- The ruling comes in the context of ongoing disputes in several states where Governors have delayed or refused to act on Cabinet recommendations for remission, citing independent discretion.
- The Supreme Court explicitly criticised a state Governor's conduct in the high-profile Perarivalan case (2022) and has now reinforced this principle in subsequent cases, clarifying that the Governor's "satisfaction" under Article 161 is the satisfaction of the Council of Ministers, not personal satisfaction.
- The court held that non-exercise of the pardoning power is not immune from judicial review.
- The ruling has implications for pending remission cases in multiple states, where Governors have held Cabinet recommendations for months or years without acting.
Static Topic Bridges
Article 161: Governor's Pardoning Power
Article 161 of the Constitution vests in the Governor of a state the power to grant pardons, reprieves, respites, or remissions of punishment for offences against any state law. This power mirrors the President's pardoning power under Article 72 but is limited to offences under state laws (as opposed to central laws, including offences punishable with death, which are within the President's exclusive domain). The Governor's pardoning power is an executive power exercised with reference to the judicial process — it does not revise or review the court's findings of guilt, but modifies the punishment imposed.
- Article 161: Governor can grant pardon, reprieve, respite, remission, suspension, or commutation for offences against state laws.
- Article 72: President's pardoning power — broader, covers death sentences and sentences by court martial.
- Key difference: President can pardon death sentences (Article 72), Governor cannot (only commute, not pardon, a death sentence — that remains with the President).
- Maru Ram v. Union of India (1981): Established that pardoning powers under Articles 72 and 161 are exercised on the advice of the respective Council of Ministers — not independently.
- Epuru Sudhakar v. State of AP (2006): Pardoning power is subject to judicial review on grounds of arbitrariness, mala fides, or non-application of mind.
Connection to this news: The current ruling reinforces Maru Ram (1981) and the Perarivalan (2022) holdings — the Governor has no independent discretion under Article 161; the Cabinet recommendation is binding.
Constitutional Position of the Governor: Aid and Advice Principle
The Governor is the constitutional head of a state, analogous to the President at the Union level. The 42nd Constitutional Amendment (1976) introduced Article 74(1)'s explicit requirement that the President "shall act in accordance with" Cabinet advice — though the Supreme Court in Shamsher Singh v. State of Punjab (1974) had already held this principle applied to both the President and Governor. Article 163 states that the Governor shall act on the aid and advice of the Council of Ministers "except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion." The scope of genuine gubernatorial discretion is very narrow — limited to specific constitutional provisions.
- Article 163: Governor acts on aid and advice of Council of Ministers, except where the Constitution explicitly confers discretion.
- Genuine discretion areas: Inviting the leader most likely to command majority to form government (when no party has clear majority); sending a Bill to President under Article 200; reserving a Bill for President's consideration.
- No discretion: Granting pardons/remissions under Article 161 is expressly held to be on Cabinet advice.
- Shamsher Singh v. State of Punjab (1974): Landmark ruling — President and Governor are constitutional figureheads, must act on Cabinet advice in all except genuinely discretionary matters.
- Perarivalan Case (2022): SC used Article 142 (complete justice) to directly release a Rajiv Gandhi assassination convict when the Tamil Nadu Governor repeatedly failed to act on the Cabinet's 2018 remission recommendation.
Connection to this news: The current ruling reinforces that gubernatorial delay itself — sitting on a Cabinet recommendation indefinitely — is constitutionally impermissible and subject to judicial intervention.
Governor-State Government Friction: A Recurring Pattern
India has witnessed recurring friction between elected state governments and centrally-appointed Governors, particularly when the state government and the Central government are led by different parties. Issues include Governors delaying assent to bills, refusing to constitute state legislative bodies, making political speeches, and withholding action on Cabinet recommendations. The Supreme Court has consistently upheld the primacy of the elected government.
- Nabam Rebia v. Deputy Speaker (2016): SC held the Governor cannot summon the Assembly independently to conduct a trust vote without Cabinet advice.
- State of Jharkhand v. Rameshwar Oraon (2021): Governor's refusal to act on remission recommendations held judicially reviewable.
- B.P. Singhal v. Union of India (2010): SC held that while the Governor holds pleasure of the President, removal must not be arbitrary — constitutional conventions govern tenure.
- Article 356 (President's Rule) is another flashpoint — the Sarkaria Commission (1983) and Punchhi Commission (2007) both recommended limiting gubernatorial discretion in recommending President's Rule.
- The Governor is appointed by the President under Article 155 and holds office at the President's pleasure under Article 156 — making the office inherently subject to central executive influence.
Connection to this news: The Supreme Court's reiteration of the binding nature of Cabinet advice on remissions is part of a broader judicial effort to constitutionalise and constrain gubernatorial conduct — giving teeth to the principle that India has a parliamentary, not presidential, form of government.
Remission of Sentences: Policy Framework
Remission (under Section 432–435 of the Code of Criminal Procedure, now the Bharatiya Nagarik Suraksha Sanhita, 2023) is a tool of penal policy — distinct from pardon (which absolves guilt). Remission reduces the period of a sentence, releasing a convict before the full term is served. State governments frame remission policies for various categories of convicts (first-time offenders, elderly, terminally ill, women with dependent children, etc.). The Governor exercises the constitutional power under Article 161, while the state remission policy provides the framework within which the Cabinet makes recommendations.
- Section 432 BNSS (formerly CrPC): State government can suspend or remit sentence — but for offences investigated by a central agency (CBI, NIA), the Centre's concurrence is required (Section 435 BNSS).
- Article 161 vs. Section 432: Article 161 is the constitutional power; Section 432 is the statutory framework. Both are necessary — Cabinet exercises Section 432 authority and advises Governor under Article 161.
- National remission policy: Home Ministry guidelines set norms for remission consideration (minimum sentence served, conduct in prison, age, etc.).
- Perarivalan precedent: SC's use of Article 142 to directly order release when Governor sat on recommendations for 4 years is an extraordinary remedy.
Connection to this news: The article highlights that whenever a Governor delays acting on a Cabinet recommendation for remission, the convict's rights are affected — the SC's ruling provides a constitutional remedy by making such delay judicially reviewable and correctable.
Key Facts & Data
- Article 161: Governor's pardoning power (state laws only)
- Article 72: President's pardoning power (all laws, including death sentences and court martial)
- Article 163: Governor acts on Cabinet aid and advice (except genuine discretion areas)
- Maru Ram v. Union of India (1981): Pardoning powers under Articles 72 and 161 exercised on Cabinet advice
- Epuru Sudhakar v. AP (2006): Pardoning power subject to judicial review
- Perarivalan Case (2022): SC used Article 142 to release convict when TN Governor held recommendations since 2018
- Key principle: Governor's "satisfaction" = Council of Ministers' satisfaction, not personal
- Genuine discretion: Very narrow — mainly formation of government, reserving bills for President
- Remission ≠ Pardon: Remission reduces sentence period; pardon absolves guilt entirely
- Section 432 BNSS: Statutory power of state government to suspend/remit sentences