Who wields the power to pardon?

News: The Supreme Court has ordered to release A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case. This has brought into limelight the Governor’s powers of pardon or remission under Article 161 of the Constitution of India.

Supreme Court’s Observation

The SC ruled that a Governor is bound by the State government’s advice in matters relating to commutation/remission of sentences under Article 161. The Court invoked its extraordinary power under Article 142 and ordered the release of Perarivalan.

What is the criticism against the office of the Governor?

In the past, there are numerous instances in which the gubernatorial offices of the Governors have been used by the Centre for political purposes.

The Constitution makers never thought of giving Governors powers similar to those of elected representatives. Therefore, the post is a nominated one and not an elected one.

The Governor’s post is “useless when inert and dangerous when active”. For example, in the Perarivalan episode, there was inertness of the Governor which proved dangerous.

The Governors are often accused of becoming agents of the party at the Centre and obstructing the implementation of welfare measures by the popularly elected State governments.

The Governors are alleged sitting on Bills passed by State legislatures without performing their duties under the Constitution.

Why did the Supreme Court issue a release order under Article 142?

The Governor had not done his duty under the Constitution. The Governor was given enough time, opportunity and warnings by the court. The Governor was blatantly disregarding the court’s observations.

The delay impacted the liberty of a person who was legally and constitutionally entitled to be released.

The judiciary is the final arbiter of the Constitution. If the Governor does not do his job, the court could pass appropriate orders.

What is the significance of the Perarivalan judgment?

The verdict has underlined the imperative of federalism in the context of gubernatorial amnesty. The judgment in this case is being seen as a victory for federalism and State autonomy.

The Article 161 is more about the Governor’s duty, rather than power.

The Governor’s duty is to abide by the recommendations of the State cabinet while performing his functions, including the power to remit, suspend or commute sentences under Article 161.

The Governor need not have sent the matter to the President. The Governor’s power under Article 161 is in no way inferior to the President’s role under Article 72.

The Governors should exercise their power timely.

The judgment recognises the power of the state in matters of remission, commutation, etc.

The verdict upholds the human rights of prisoners. The judgment shows a great amount of judicial discipline by adhering to the established principles of law. The court invoked Article 142 to do “complete justice”.

What are the lessons for our justice system?

Justice delayed is justice denied. Each organ of governance has to work towards the preservation and promotion of human rights.

The institution is working very hard. India has one of the lowest judge-to-population ratios in the world.

There is a problem of judicial vacancies in various High Courts and tribunals. The High Courts are functioning with 50% strength.

The judgment shows the importance of pursuit of the cause by litigants, their lawyers, the court and the media.

The judgment upheld the individual’s freedom and dignity, the basic promises of the Constitution.

Way Forward

The Governor

The Governor is not bound by an arbitrary decision by the cabinet passed by non-application of mind or extraneous considerations. The device of judicial review is the most effective check against such aberrations.

The powers of nomination of the Governor should be re-considered.

The Justice Sarkaria Commission wanted the Governor to act as “a friend, philosopher and guide” to the Council of Ministers. The Governor should be a “detached figure and not too intimately connected with the local politics of the State”.

The Governor should act within the constitutional framework.

Indian Judiciary

We need to have Regional Benches of the Supreme Court to reduce the workload.

The retirement age of judges can be increased to 70.

Source: The post is based on an article “Who wields the power to pardon” published in the “The Hindu” on 27^th May 2022.