Act on 'aid and advice' says the Constitution

In its crucial decision on 18th May 2022, the Supreme Court of India directed the release of AG Perarivalan, convicted in connection with the assassination of former Prime Minister Rajiv Gandhi. It did so by exercising its extraordinary powers under Article 142 of the Constitution. Perarivalan was before the Court against the Governor’s immense delay in deciding his petition to remit sentence under Article 161, albeit the State Cabinet recommending such release. The Governor had in fact acted contrary and referred the Cabinet’s recommendation to the President after a period of two & half years. The question ‘Whether the Governor had any Constitutional basis to make such reference under Article 161’ thus arose before the Supreme Court.

The Court revisited the role of the Governor in a parliamentary system of governance, where it acts only as the formal head of the State. Scope of its powers to grant pardon, remission or suspend sentence, acting as the formal head, can only be in conformity with the Constitution. In case of improper, non-judicious or delayed exercise of power, the actions of the Governor become amenable to judicial review by courts. The impact of a delayed decision on the incarcerated also then becomes a significant consideration. Factoring in these principles, AG Perarivalan was released by the Court, having served 32 years in prison.

Governor’s powers under Article 161

The Court examined the scope of Governor’s powers in a Parliamentary form of government, based on the British Parliamentary system. Here, the position is that the Governor acts as the formal head of the State and is bound by the aid and advice of the Council of Ministers (Shamsher Singh v. Union of India (1974)). He cannot thus use his own judgement or discretion in taking decisions unless the Constitution provides for it.

A similar position exists under Article 161, which empowers the Governor to grant pardon, remission or suspend the sentence of any person convicted of an offence. The constitutional bench decision of the Supreme Court in Maru Ram v Union of India (1981) has categorically laid down that under Article 161 the Governor’s decision is in fact the decision of the State Government.

One may ask, what happens in case the decision of the State Government is itself contrary to law or taken with insufficient reasons/ information. Would the Governor still be bound by such decision? In that case, though the decision would still be binding, it may be challenged before a court to the extent it is contrary. Further, under certain situations mentioned under Article 167, the Governor may ask the Cabinet to consider a matter which has not been done or seek information forming the basis of a decision which has not been provided. What is however not open to the Governor is to turn a blind eye to the Cabinet’s application of mind on release of a convict, for it is only an alter ego of the State Government acting solely on its advice (subject to few exceptions).

Lack of Constitutional basis to consult the President

Another factor that weighed in with the Court was the lack of source of the Governor’s power to consult with or refer the matter to the President. Rightly so, the Constitution, being the supreme authority on the competence of a constitutional functionary that it created (the Governor in this case), ought to have some basis for the Governor’s actions. Much like statutory interpretation, the actions of a creature of statute are circumscribed by the powers conferred by the statute itself and cannot go beyond.

This is illustrated by the fact that where the Constitution intends for the Governor to consult the President or seek prior approval, it specifically says so. For instance, Article 213 requires the Governor to seek prior instructions from the President before promulgating an Ordinance if such prior sanction is mandated by the Constitution. Article 315(4) mandates the Governor to obtain prior approval of the President if it requires the Union Public Service Commission to act for the State. Article 200 is the only provision where the Constitution mandates the Governor to seek ‘consideration’ of the President and not assent to certain Bills until after. This was also pointed out by Sr. Adv. Rakesh Dwivedi in the course of his arguments for the State Government.

The power to grant pardon, remit or suspend sentence under Article 161, however, does not provide for a similar approval or consideration of the President. The only guiding provision is Article 163, which requires him simpliciter to act under the aid and advise of the Cabinet. Thus, the Tamil Nadu Cabinet having recommended release, the Governor was not empowered at all to consult with or refer this recommendation to the President. Reading such a power into the Constitution would not only mean that the President will be consulted in each case under Article 161 (besides its distinct power under Article 72), but also mean that all pardons/ remissions granted by the Governor till date without approval of the President are unconstitutional. The power under Article 161 would then be rendered otiose. This specifically fell from the bench when the case was being heard and was also argued by Sr. Adv. Gopal Sankaranarayanan.

Exercise of Court’s power under Article 142

Importantly, the decision was rendered under Article 142 of the Constitution which gives the Supreme Court wide powers to pass orders to do ‘complete justice’. Article 142 has been used previously to grant relief where relief under the statute was considered inadequate (Kalyan Sarkar 2005), extend benefits of a judgement to all similarly situated (Bhaskar 1996), grant sizable compensation to victims of Bhopal gas tragedy (Union Carbide 1991) etc. The Court has also exercised this power to remit sentence in case of immense delay in deciding petitions under Article 72/ 161 and even to remit sentence where considerable time has been spent in prison.

Besides the Governor’s inaction, the extreme delay occasioned in Perarivalan’s case gave good ground to the Court to exercise its extraordinary powers and undo the ‘injustice’ caused by such delay. The Court also reasoned how this delay might physically and mentally agonise individuals whose liberty is curtailed, as they await the Governor’s final decision, despite a favourable Cabinet recommendation.

The long period of incarceration of Perarivalan (32 years), educational qualifications he obtained while in prison and his conduct when released on parole earlier also contributed to his release. These factors being considered relevant by courts underscore the importance of ‘reformation’ under the Indian penal system, which often equally become a reason for granting relief, besides the Constitutional violation by authorities.