Who wields the power to pardon?

The Perarivalan judgment heeds federalism, but is there a danger of arbitrariness in remission?

Updated - May 27, 2022 11:57 am IST

Published - May 27, 2022 01:51 am IST

A.G. Perarivalan outside his residence in Chennai.

A.G. Perarivalan outside his residence in Chennai. | Photo Credit: AFP

The Governor’s powers of pardon or remission under Article 161 of the Constitution have been in the spotlight with the Supreme Court judgment ordering the release of A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case. In 2018, the then Tamil Nadu cabinet had recommended to the Governor that all the seven convicts be released. The Raj Bhavan sat on the recommendation before forwarding it to the President for advice. This month, the Supreme Court 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 in ordering the release of Perarivalan, who had already spent over 30 years in prison. This has raised questions about the limits, if any, to a State government’s recommendation to the Governor to pardon or remit. In a discussion moderated by Krishnadas Rajagopal, P. Wilson and Kaleeswaram Raj discuss questions arising from the case, including those relating to the Office of the Governor, judicial delays and the Perarivalan judgment’s value as a precedent. Edited excerpts:

The Supreme Court judgment has been hailed as a victory for federalism and State autonomy by the Tamil Nadu Chief Minister. Will this line of reasoning not spur the tendency to endorse any arbitrary decision with respect to remission or pardon by a State cabinet in the future, even when it is vitiated by political or other considerations?

P. Wilson: You are talking as if Governors always act reasonably. We have seen that Governors have become agents of the party at the Centre. We have seen State governments formed by non-BJP (Bharatiya Janata Party) parties facing difficulties with Governors who are obstructing the implementation of welfare measures by the popularly elected State governments. Governors are sitting on Bills passed by State legislatures without performing their duties under the Constitution. The decision of a State cabinet is binding on the Governor, according to the Constitution. The Supreme Court judgment in the Perarivalan case is a reiteration of that principle. The cabinet represents the people. So, people control the decisions. If the people do not like the cabinet’s decisions, they will vote the government out. The cabinet’s decisions are subject to judicial scrutiny. There is no danger of arbitrariness. In the present case, the apex court has approved the State cabinet’s decision to remit Perarivalan’s sentence by saying that the Governor should have acted on it. There can be no allegation of legal perversity in this case.

Explained | Pardon and remission, and who grants them  

Kaleeswaram Raj: The verdict has underlined the imperative of federalism in the context of gubernatorial amnesty. Article 161 is more about the Governor’s duty, rather than power. It is in no way inferior to the President’s role under Article 72, nor is it replaced by the latter. The Governor is generally bound by the cabinet decision. This does not, however, mean that even an arbitrary decision by the cabinet, vitiated by non-application of mind or extraneous considerations, would bind the Governor. This position is well-settled. The device of judicial review is the most effective check against such aberrations. The present judgment does not alter this position of law. It rests on its own peculiar facts, and there is no room for apprehension.

The court invoked Article 142 and directed Perarivalan to be released. This, ideally, should have been an order the Governor should have issued. Would it have been proper and desirable for the court to remit the matter to the Governor? Can Article 142 be stretched to this extent?

P. Wilson: Not at all. The Governor had not done his duty under the Constitution. All authorities are bound by the decisions of the apex court. Gone are the days when we used to say the court cannot issue directions to Governors or even the President. Nobody is above the law. The Governor was given enough time, opportunity and warnings by the court. The Governor was blatantly disregarding the court’s observations. In such circumstances, the court is empowered under Article 142 to do complete justice. The judiciary is the final arbiter of the Constitution. If the Governor does not do his job, the court can pass appropriate orders.

Kaleeswaram Raj: The invocation of Article 142 is justified in the peculiar facts of the case, which are almost unique. The delay on the part of the Governor in accepting the State cabinet decision was enormous. It impacted the liberty of a person who was legally and constitutionally entitled to be released. The case was fought for decades. The Centre contributed to the delay by invoking its usual litigation strategies. The court might have been conscious of this processual injustice meted out to Perarivalan and felt the only way to undo it was to invoke Article 142 and release the prisoner. A further remittance to the Governor would have prolonged the litigation, which had already crossed all imaginable limits.

Also read | Governors can pardon prisoners, including death row ones: Supreme Court

In the past, given the instances where gubernatorial offices were used by the Centre for political purposes, many have questioned even the need for the office of the Governor. Do you feel that the admonition against the Governor in this case should persuade us to rethink the requirement to have nominated Governors?

P. Wilson: Certainly. See the Constituent Assembly debates on the manner of appointment of Governors. The makers of the Constitution never thought of giving Governors powers similar to those of elected representatives. Hence the post is a nominated one and not an elected one. It is dangerous when one man sits over the decisions of 234 elected representatives as it amounts to removing the basis of democracy. The powers of nomination should be re-considered.

Kaleeswaram Raj: Many people think so. I am reminded of the opinion of Prof. R. Venkata Rao of Andhra University who hinted that the Governor’s post is “useless when inert and dangerous when active”. Ironically, in the Perarivalan episode, even the inertness of the Governor proved to be dangerous. Yet, I do not share the view that misuse of a position per se is a reason for abolishing it. There are many duties which the Governor must carry out in a federal system. The Justice Sarkaria Commission wanted the Governor to act as “a friend, philosopher and guide” to the Council of Ministers. It wanted the Governor to be a “detached figure and not too intimately connected with the local politics of the State”. The point is to ensure that the Governor acts within the constitutional framework. Abolition of the post could create more problems than those it intends to resolve.

News Analysis | ‘Governor cannot employ his ‘discretion’ and should strictly abide by the ‘aid and advice’ of the Cabinet’

In recent times, the Supreme Court has been criticised for its lethargy in deciding important cases, especially cases with political overtones. Cases on demonetisation, abrogation of the special status for Jammu and Kashmir, validity of electoral bonds, etc., are some instances in which the court deferred adjudication and invited criticism. Do you think that the Perarivalan judgment marks a welcome change in the approach of the court?

P. Wilson: Generally, these criticisms are unwarranted and made by people who do not know how hard the institution is working. Do you know that India has one of the lowest judge-to-population ratios in the world? The Union government is not appointing High Court and tribunal judges on time despite Supreme Court recommendations. During COVID-19, our country’s judiciary heard and disposed of an incredible number of cases. It functioned better than the judiciary in other countries. If not for the court’s orders, oxygen supply to the States would not have been equitable during the second wave. I see a court that is greatly sensitive towards violation of human rights. A person was kept in jail despite the state’s decision to release him. This is definitely a case that warranted the court’s interference.

Kaleeswaram Raj: The court is not static. It is an ever-changing institution depending on multiple factors like the individuals who run it and the overall constitutional climate. There have been some good judicial interventions in recent times from the Supreme Court. It rejected the stand of the Centre in important cases like the Pegasus issue and the sedition law. It may not be an ideal Supreme Court. Yet, it is a Supreme Court of possibilities.

What exactly is the value of the Perarivalan judgment in terms of setting a precedent?

P. Wilson: First, the judgment holds that the duty of the Governor 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. Second, an important finding is that the Governor need not have sent the matter to the President. Third, it is the duty of Governors to exercise their powers on time. Fourth, the judgment recognises the power of the state in matters of remission, commutation, etc. Fifth, the verdict upholds the human rights of prisoners.

Explained | Article 142 of the Constitution under which Supreme Court ordered release of Perarivalan

Kaleeswaram Raj: The judgment is precise and clear. It runs into a mere 29 pages. It resembles the Brexit verdict of the U.K. Supreme Court that interfered with Boris Johnson’s decision to prorogue Parliament. Brevity is a universal virtue for constitutional analysis. The judgment shows a great amount of judicial discipline by adhering to the established principles of law. Yet, the court invoked Article 142 to do “complete justice”. The jurisprudential value of the judgment lies in the idea of “complete justice” applied in the given facts and circumstances. This is something unprecedented.

What are the lessons for our justice system from the Perarivalan case?

P. Wilson: Justice delayed is justice denied. Each organ of governance has to work towards the preservation and promotion of human rights. We cannot accuse courts of delay without giving them the necessary infrastructure. The Chief Justice of a High Court, during an informal interaction during a visit by my Parliamentary Committee on Law and Justice, mentioned the judicial vacancies in various High Courts. He asked whether we would allow Parliament to function on only 50% strength without conducting elections. Then, why are High Courts left to function with 50% strength? If you give the judiciary the infrastructure, it will work faster. We need to have Regional Benches of the Supreme Court to reduce the workload. Increase the retirement age of judges to 70. If these changes are made, I can assure you of the results.

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

Kaleeswaram Raj: The judgment has multiple dimensions. It shows the importance of pursuit of the cause by litigants, their lawyers, the court and the media. It was a hard-won battle. At the end of the day, the judgment upheld the individual’s freedom and dignity, the basic promises of the Constitution. It is a judgment on fundamental rights, though it does not explicitly say so. It emancipates the individual(s) from the clutches of the mighty state while using the very apparatus of the state. That is itsbeauty and strength.

Kaleeswaram Raj is a Supreme Court advocate; P. Wilson is a senior advocate and a DMK MP in the Rajya Sabha

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