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Governor is ‘but a shorthand expression for State government’, says Supreme Court

SC clarifies on exercising powers of clemency under Article 161

May 18, 2022 10:36 pm | Updated October 31, 2022 12:54 am IST - NEW DELHI

A view of the Supreme Court in New Delhi.

A view of the Supreme Court in New Delhi. | Photo Credit: R. V. Moorthy

The Governor of a State is “but a shorthand expression for the State government” while exercising powers of clemency under Article 161 of the Constitution, the Supreme Court said in its judgment releasing Rajiv Gandhi assassination case convict A.G. Perarivalan on Wednesday.

A Bench led by Justice L. Nageswara Rao, referring to Constitution Bench judgments, recorded that “in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries (President and Governor) in our constitutional scheme must act not on their own judgment but in accordance with the aid and advice of the ministers”.

“The constitutional conclusion is that the Governor is but a shorthand expression for the State government,” Justice Rao wrote in the judgment.

The court had held that the Tamil Nadu Governor’s refusal to abide by the State Cabinet’s recommendation to release Perarivalan and forward his pardon plea to the President was against the constitutional scheme.

‘Bound by the advice’

Though the Governor was the “formal head and sole repository of the executive power”, the court said he or she would be bound by the advice of the State’s Council of Ministers under Article 161 “whether the Governor likes it or not”.

“The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release,” the Supreme Court reiterated the constitutional position laid down by judicial precedents over the years.

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