The Supreme Court in the appeal filed A.G. Perarivalan, one of the convicts in Rajiv Gandhi's assassination has restated that Governor has the power under Article 161 to remit/commute/pardon sentences imposed under Section 302 IPC.
The full-bench comprising of Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna rejected Centre's submission that only President has the exclusive power under Article 72 to pardon or grant remission or commute sentences imposed.
Learned Senior Counsel for appellant submitted that the recommendation made by the State Cabinet to grant remission to the Appellant should have been decided by the Governor. The Governor does not have power to refer the recommendation of the State Cabinet to the President of India. He contended that the recommendation made by the State Cabinet is binding on the Governor and he cannot exercise independent discretion. At the most, the Governor could have requested the State Cabinet to reconsider its decision but he lacked the jurisdiction or power to refer the recommendation made by the State Cabinet to the President of India, as under Article 161 the Governor exercised power on the aid and advice of the Council of Ministers. It was further submitted that if the argument of the competent authority being the President of India is accepted, then every pardon / suspension granted by the Governor till date under Article 161 would be unconstitutional.
Learned Senior Counsel appearing for the State of Tamil Nadu, supported the stand of the Appellant by arguing that the scope of Articles 161 to 163 has been explained by more than one Constitution Bench of this Court, according to which, unless expressly provided by the Constitution, the Governor is bound by the decision of the Cabinet of Ministers. If a decision made by the Governor on the advice of the Council of Ministers is found to be beyond the jurisdiction of the State Government, it can always be challenged before constitutional courts. However, the Governor is not constitutionally empowered to sit in judgment of the recommendation of the Council of Ministers. He further urged that there is no provision in the Constitution which enables the Governor to refer the recommendation of the State Cabinet for the decision of the President of India. Such actions of the Governor would be in violation of the federal structure of this country, which is a basic feature of our Constitution.
On the other hand, learned Additional Solicitor General of India, submitted that the appropriate Government in the matter of remission / commutation in the present case is the Union of India. He placed reliance on Union of India Vs. V. Sriharan @ Murugan & Ors., 2015 Latest Caselaw 783 SC to argue that the Governor rightly referred the recommendation made by the State Cabinet, as it is only the President of India who can take a decision on the remission / commutation of the sentence of the Appellant.
He further contended that the Governor was not always bound by the advice of the Council of Ministers and there were recognised exceptions to the said rule where the Governor is required to act in his own discretion and cited Madhya Pradesh Special Police Establishment Vs. State of Madhya Pradesh & Ors, 2004 Latest Caselaw 646 SC
The Court at the outset noted that the power 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 related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution.
"Article 162 makes it clear that the executive power of the State shall extend to matters with respect to which the Legislature of the State has power to make laws. Article163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion."
The Court elaborated that in the Indian Constitution, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part"
Noting that under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, the Court noted:
"Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360, the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions"
The Court remarked that it has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds and similarly, non-exercise of the power under Article 161 is not immune from judicial review. It cited Epuru Sudhakar & Anr Vs. Govt. of A.P. & Ors, 2006 Latest Caselaw 641 SC
"Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission / commutation of his sentence."
The Court held that rationale of Madhya Pradesh Special Police Establishment (supra) doesn't apply to the present case.
"No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the State Cabinet having based its recommendation on extraneous considerations. Moreover, in the said case, the Governor had taken a decision which was subsequently challenged, unlike the present case, where the Governor has merely forwarded the recommendation made by the State Cabinet to the President of India."
Case Title: A.G. Perarivalan Versus State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr.
Case Details: Criminal Appeal Nos. 833-834 of 2022
Coram: Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna
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