constitutional-fault-lines

Context: The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon filed by A.G. Perarivalan, one of the seven prisoners convicted in the Rajiv Gandhi assassination case. 

More on news:

  • In 2018, the Supreme Court (SC) had asked that the Governor should take a decision. 
  • A resolution passed by the Council of Ministers in favour of releasing all seven prisoners had rendered the matter decided. 
  • The inaction by the Governor now has given rise to ambiguity over constitutional powers.

Pardoning power of the governor: Article 161

  • The Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
  • It must be related to a matter to which the executive power of the state extends.
  • Death sentence: It should be noted that the President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

Various powers

  • Pardon: It means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: It means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: It means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: It means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Past judgments on inordinate delay by constitutional authorities 

  • In Maru Ram v. Union of India (1981), the SC held that the pardoning power “under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.” 
    • The advice of the appropriate Government binds the Head of the State. 
    • To test the constitutionality of the order or resolution is a power reserved exclusively for constitutional courts of the country.
  • Shatrugan Chouhan v. Union of India: The SC laid down the principle of “presumption of dehumanising effect of delay”. 
    • Under Article 32 of the Constitution, the SC commuted the death sentences of 15 convicts  when an inordinate delay to perform a constitutional function was brought to its notice.
    • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.
    • The apex court has clarified that constitutional functionaries are not exempt from judicial scrutiny. 
  • Keisham Meghachandra Singh v. Hon’ble Speaker (2020):  It was argued that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a ‘writ of mandamus’. 
    • However,the SC recalled an earlier judgment in Rajendra Singh Rana v. Swami Prasad Maurya (2007).
    • It confirmed that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”.
  • Keisham Meghachandra Singh case: The SC issued a judicial direction to the Speaker to decide the disqualification petitions within a period of four weeks. 

In the present case, there has been a substantial delay at the hands of the Governor. This calls for the immediate interference of the Supreme Court, for it otherwise would render the words contained in Article 161 of the Constitution meaningless.

Image source: dnaindia.com