Discussion of supreme court regarding articles 161, 162,163 of constitution of india in perarivalan case

 

Discussion of supreme court regarding Articles 161,162 & 163 of constitution of india in perarivalan case

 

The power to grant pardons, reprieves, respites or

remissions of punishment or to suspend, remit or commute

the sentence of any person convicted of an offence against

any law related to which the executive power of the State

extends is vested in the Governor under Article 161 of the

Constitution. Article 162 makes it clear that the executive

power of the State shall extend to matters with respect to

which the Legislature of the State has power to make laws.

Article163 of the Constitution provides that there shall be a

Council of Ministers with the Chief Minister at the head to aid

and advise the Governor in the exercise of his functions,

except in so far as he is by or under this Constitution

required to exercise his functions or any of them in his

discretion.

The limits within which the executive Government can

function under the Indian Constitution can be ascertained

without much difficulty by reference to the form of the

executive which our Constitution has set up. Our

Constitution, though federal in its structure, is modelled on

the British parliamentary system where the executive is

deemed to have the primary responsibility for the

formulation of governmental policy and its transmission into

law though the condition precedent to the exercise of this

responsibility is its retaining the confidence of the legislative

branch of the State. The Governor occupies the position of

the head of the executive in the State but it is virtually the

Council of Ministers in each State that carries on the

executive Government. In the Indian Constitution, therefore,

we have the same system of parliamentary executive as in

England and the Council of Ministers consisting, as it does, of

the members of the legislature is, like the British Cabinet, “a

hyphen which joins, a buckle which fastens the legislative

part of the State to the executive part”. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on

the aid and advice of his Council of Ministers, save in spheres

where the Governor is required by or under the Constitution

to exercise his functions in his discretion. Wherever the

Constitution requires the satisfaction of the President or the

Governor for the exercise of any power or function by the

President or the Governor, as the case may be, as for

example in Articles 123, 213, 311(2) proviso (c), 317, 352(1),

356 and 360, the satisfaction required by the Constitution is

not the personal satisfaction of the President or of the

Governor but is the satisfaction of the President or of the

Governor in the constitutional sense under the Cabinet

system of Government. It is the satisfaction of the Council of

Ministers on whose aid and advice the President or the

Governor generally exercises all his powers and functions.

Even though the Governor may be authorised to

exercise some functions, under different provisions of the

Constitution, the same are required to be exercised only on

the basis of the aid and advice tendered to him under Article

163, unless the Governor has been expressly authorised, by

or under a constitutional provision, to discharge the function

concerned, in his own discretion.

A Constitution Bench of apex Court in Maru Ram v.

Union of India authoritatively summed up the position with

respect to Article 161, as reproduced hereinafter: “…the

Governor is the formal head and sole repository of the

executive power but is incapable of acting except on, and

according to, the advice of his Council of Ministers. The

upshot is that the State Government, whether the Governor

likes it or not, can advice and act under Article 161, the

Governor being bound by that advice. 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 ”.

By following the dictum in Samsher Singh v. State of

Punjab, the apex Court in Maru Ram (supra) further held that in

the matter of exercise of the powers under Articles 72 and

161, the two highest dignitaries in our constitutional scheme

act and 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.

19. The law laid down by this Court, as detailed above, is

clear and explicit. The advice of the State Cabinet is binding

on the Governor in matters relating to commutation /

remission of sentences under Article 161. No provision under

the Constitution has been pointed out to us nor any

satisfactory response tendered as to the source of the

Governor’s power to refer a recommendation made by the

State Cabinet to the President of India. In the instant case,

the Governor ought not to have sent the recommendation

made by the State Cabinet to the President of India. Such

action is contrary to the constitutional scheme elaborated

above. It is relevant to point out that the recommendation

made by the State Cabinet was on 09.09.2018, which

remained pending before the Governor for almost two and a

half years without a decision being taken. It was only when

the apex Court started enquiring about the reason for the decision

being delayed, the Governor forwarded the recommendation

made by the State Government for remission of the

Appellant’s sentence to the President of India.

The apex court is fully conscious of the immunity of the Governor

under the Constitution with respect to the exercise and

performance of the powers and duties of his office or for any

act done or purported to be done by him in the exercise and

performance of such powers and duties. However, as held by

this Court in numerous decisions, the apex Court has the power of

judicial review of orders of the Governor under Article 161,

which can be impugned on certain grounds. Non-exercise of

the power under Article 161 is not immune from judicial

review, as held by the apex Court in Epuru Sudhakar v. Govt.

of A.P.. Given petitions under Article 161 pertain to the

liberty of individuals, inexplicable delay not on account of the

prisoners is inexcusable as it contributes to adverse physical

conditions and mental distress faced by a prisoner, especially

when the State Cabinet has taken a decision to release the

prisoner by granting him the benefit of remission / commutation

of his sentence.