President vs Governor: Ordinance Powers, Pardons and Discretion Compared — Polity One-Pager for UPSC & State PSC

Quick Answer: How President and Governor Differ on Ordinances, Pardons and Discretion

In one line: The President’s powers under Articles 123, 72 and 111 are wider than the Governor’s under Articles 213, 161 and 200/201 — the key gaps being court martial pardons, death sentence pardons, and ordinance scope covering laws on the Union List. Three exam-ready differences: (1) Both can promulgate ordinances, but the President needs satisfaction that circumstances exist for “immediate action” when Parliament is not in session; the Governor does so for state laws under Article 213. (2) Both hold the five clemency powers — pardon, commute, remit, respite, reprieve — but only the President can pardon court martial sentences (Art 72) and, per the majority view, death sentences. (3) The Governor has real constitutional discretion (Articles 200, 201, 356); the President under Article 74 acts on aid and advice of the Council of Ministers.

Why This Comparison Is a Repeated Prelims Favourite

UPSC and State PSCs test the President vs Governor powers comparison almost every cycle because the provisions mirror each other with small, testable traps: which article belongs to which office, who can pardon a death sentence, how long an ordinance survives, and when the Governor acts discretionally. One-liner framing for revision:

• Ordinance: President — Art 123; Governor — Art 213.
• Pardon: President — Art 72; Governor — Art 161.
• Assent to bills: President — Art 111; Governor — Arts 200–201.
• Aid and advice: President — Art 74; Governor — Art 163 (with discretionary carve-outs).

Ordinance Power: Article 123 (President) vs Article 213 (Governor)

What are the conditions for promulgating an ordinance?

Under Article 123, the President can promulgate ordinances when both Houses of Parliament (or either House) are not in session, and he is satisfied that circumstances exist making immediate action necessary. The President acts here on the advice of the Union Council of Ministers — the “satisfaction” is not personal. Under Article 213, the Governor can promulgate ordinances when the state legislature (or either House, if bicameral) is not in session, but only when the Governor himself is satisfied that circumstances warrant immediate action — an additional restriction, since Article 213 requires the Governor to act in cases where the state legislature is not in session and the task could ordinarily have been done by the legislature.

How long does an ordinance remain valid?

An ordinance must be laid before Parliament/state legislature upon reassembly and ceases to operate six weeks after reassembly, unless approved earlier and converted into an Act. The outer limit is therefore roughly six months and six weeks (if the legislature is not summoned for the maximum six-month gap). The Governor cannot promulgate an ordinance without prior instruction from the President if a bill containing the same provisions would have required the President’s assent under Article 200/201 rules.

Side-by-Side Comparison Table: Ordinance Powers

Pardoning Powers: Article 72 vs Article 161

Can the Governor pardon a death sentence, and can the President pardon court martial sentences?

Article 72 gives the President power to grant pardon, reprieve, respite, remission and commutation in all cases where: (a) the punishment is for an offence against a Union law, (b) the sentence is a death sentence, or (c) the sentence is by a court martial. Article 161 gives the Governor the same five clemency powers for offences against state laws — but there is no mention of court martial, and the Constitution is silent on death sentences. The majority legal and judicial view (supported by Supreme Court observations, including in Kehar Singh v. Union of India, 1989, which addressed the President’s power) is that a Governor cannot pardon a death sentence or commute it to anything below life imprisonment — that power rests exclusively with the President.

Side-by-Side Comparison Table: Clemency Powers

Discretionary Powers Compared

The Governor has real constitutional discretion, unlike the President. Under Article 163, the Governor is aided by a Council of Ministers except where the Constitution requires him to act in his discretion — chiefly: reserving bills for the President (Art 200), assent to reserved bills resting with the President (Art 201), and sending a report under Article 356 recommending President’s Rule. Governors also exercise situational discretion in appointing a Chief Minister in a hung assembly and dismissing a ministry that has lost confidence. The President under Article 74 must act on the aid and advice of the Union Council of Ministers (the 42nd Amendment made advice binding; the 44th allowed one reference back).

Veto and Assent Powers (Bonus Context)

Under Article 111, the President can assent, withhold (absolute veto), return a non-Money Bill once (suspensive veto), or — for bills re-passed — must assent; he has no pocket veto deadline. Under Article 200, the Governor may assent, withhold, return (if not a Money Bill), or reserve for the President — an option the President lacks, making the Governor’s position distinct. Under Article 201, the President decides on reserved bills with no time limit. This pairing is frequently asked alongside ordinances and pardons in Prelims.

Key Case Laws and Verdicts to Cite in Mains

• D.C. Wadhwa v. State of Bihar (1987): Repeated re-promulgation of ordinances is an abuse of power and a subversion of the democratic process.
• Krishna Kumar Singh v. State of Bihar (2017): Re-promulgation of ordinances is a fraud on the Constitution; ordinances have a limited shelf life; satisfaction is judicially reviewable.
• R.C. Cooper v. Union of India (1970): The President’s satisfaction under Art 123 can be examined by courts.
• Kehar Singh v. Union of India (1989): President’s pardon power in death sentence cases is wide but exercisable on advice; not subject to judicial review on merits in the same way as court judgments.
• Maru Ram v. Union of India (1980) / Kehar Singh: Pardon powers are exercised on government advice, not personally.

Memory Tricks and One-Liner Facts

• Mnemonic “123 – Orders from Rashtrapati; 213 – Raj Bhavan”: 123 for President (ordinance), 213 for Governor.
• “72 – Full Pardon (President); 161 – State Pardon (Governor)” — bigger number gap, bigger power gap: only Art 72 covers death sentence and court martial.
• Both ordinances die 6 weeks after reassembly; max life ≈ 6 months + 6 weeks.
• Court martial pardons: President only — common trap in State PSC papers.
• The Governor alone can reserve bills and recommend President’s Rule; the President alone acts on Art 74 advice.

Practice MCQs: Prelims-Style Questions with Answers

1. With reference to ordinances, consider the following statements:
(1) An ordinance ceases to operate six weeks after Parliament reassembles.
(2) The Governor can promulgate an ordinance only when the state legislature is not in session.
Which is/are correct?
Answer: Both 1 and 2.

2. Which of the following pardoning powers is enjoyed by the President but NOT the Governor?
(a) Commutation (b) Respite (c) Pardon of court martial sentences (d) Reprieve
Answer: (c).

3. In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court held that:
Answer: Re-promulgation of ordinances is a fraud on the Constitution.

4. Under which article does the Governor act in his discretion?
(a) Art 74 (b) Art 163 read with Arts 200, 201, 356 (c) Art 72 (d) Art 111
Answer: (b).

5. The maximum gap between two sessions of a state legislature can be:
Answer: Six months — hence an ordinance’s outer life is six months plus six weeks.

Summary Sheet: Downloadable One-Pager

Frequently Asked Questions

Q: Can the Governor pardon a death sentence?

The Constitution is silent on this under Article 161. The majority legal and judicial view — reflected in Supreme Court observations and standard constitutional commentary (including the view accepted in V. Sriharan-era discussions) — is that the Governor cannot pardon a death sentence or commute it below life imprisonment; only the President under Article 72 can.

Q: For how long does an ordinance remain in force?

Six weeks from the reassembly of Parliament/state legislature, within a maximum window of six months and six weeks if approval is not granted.

Q: Can an ordinance be re-promulgated?

No. In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court held that repeated re-promulgation is a fraud on the Constitution and unconstitutional, following D.C. Wadhwa (1987).

Q: Does the Governor act on the advice of the Council of Ministers in all matters?

Generally yes, under Article 163, but the Governor retains discretion under Articles 200, 201 and 356 — reserving bills, and recommending President’s Rule.

Q: Which powers does the President have that the Governor does not?

Pardoning court martial sentences and (by majority view) death sentences under Article 72, and ordinance power covering Union laws when Parliament is not in session under Article 123.

Related reading

• Round Table Conferences 1930-32: Session-wise Decisions and Why Gandhi Attended Only the Second
• Fundamental Rights (Articles 12–35): Landmark Supreme Court Judgments Every UPSC Prelims Tests

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