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The Question of Mercy

9 min read

By: Lokendra Malik, Advocate, Supreme Court of India

Published on: 10 May, 2022 at 22:26 IST

The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when the occasion arises in accordance with the discretion contemplated by the context”, observed a Constitution Bench of the Supreme Court in the Kehar Singh case in 1988.

Unfortunately, then Governor of Tamil Nadu Banwari Lal Purohit forgot these judicial observations when he referred the mercy petition filed by Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case, to the President of India, against the well-established constitutional practice and judicial precedents and abdicated his own constitutional duty to decide the mercy plea according to the advice tendered by the State Cabinet.

Recently, the Supreme Court took this matter seriously and questioned the Governor’s decision to refer the mercy petition to the President of India. The President has no role under Article 161. In case the Governor has a different opinion, he has to send it back to the State”, the Court observed.

The Apex Court is now considering the constitutional validity of the Governor’s action for referring the mercy petition to the President. Many constitutional pundits, legal thinkers, and commentators rightly opine that the Governor of Tamil Nadu had no justification to refer the mercy petition to the President when the State Cabinet had advised him to accept the petition of Perarivalan. In such a situation, the Governor was bound to decide on the mercy petition as per the State Cabinet’s advice. Sending file to the President is not justified at all.

Under our constitutional scheme, the Governor generally exercises his constitutional functions and powers, including the pardoning power on the aid and advice of the Council of Ministers and has no scope to use his discretion in these kinds of matters. It is a misconception that the Governor exercises his individual judgment in dealing with mercy petitions. He can only ask the Cabinet to reconsider its decision but thereafter he is bound to act according to the Cabinet’s view if it reiterates its advice. This is a well-settled constitutional position and the Supreme Court has affirmed this view in several cases.

In the Samsher Singh case (1974), the Supreme Court explained the constitutional position of the Governor succinctly. The Court observed that the Governor is a constitutional head of the State who needs to act on the aid and advice of the Council of Ministers headed by the Chief Minister in the exercise of his constitutional powers and functions save in a few areas wherein he can use his discretion. The Court observed: “The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises 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 by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of government, that is, the satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of the Minister or officer under the rules of business is the decision of the President or the Governor”.

As the pardoning power is a constitutional power of the Governor, it needs to be exercised on the elected government’s advice. The Governor has no discretion to disregard the advice of the elected government headed by the Chief Minister. It is the government which takes the policy decisions, not the Governor. The Governor is only entitled to seek information from the Chief Minister regarding the decisions of the government and other affairs of the State.

The mercy petition is not meant to be a further appeal against the judgment of the Supreme Court which has attained finality. The relevant considerations in deciding a mercy petition are: the time spent by the convict in jail and the remaining period of the sentence, his conduct in the jail, his age, health, and his family responsibilities, etc.

The Home Minister considers all these aspects based on the necessary inputs received from the police and prison authorities and sends his recommendation to the Governor as per the rules of business of the government. The actual decision is taken by the Home Minister and it is just approved by the Governor in compliance of constitutional formalities. Obviously, the Supreme Court and High Courts have the power to check the exercise of pardoning power on certain limited grounds.

Notably, the Constitution does not prescribe any timeline during which the Governor has to decide the mercy petitions. This is why the mercy petitions remain pending for years before the Governor and the President.

However, the Supreme Court has decided in some cases that the mercy petitions should be decided expeditiously. On this issue, the Apex Court, in the Shatrughan Chauhan case, observed: It is well-established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. Considering the high status of office, the constitutional framers did not stipulate any outer limit for disposing the mercy petitions under the said Articles, which means it should be decided within a reasonable time. However, when the delay caused in disposing of the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values”.

Coming back to the facts of Perarivalan’s mercy petition, the Tamil Nadu State Cabinet had advised the Governor in 2018 to accept the mercy plea of Perarivalan which was submitted by him in 2015 but the Governor did not take any action on the matter for years. It is only when the matter reached the Supreme Court in 2021 and the Court directed the Governor to decide the mercy petition, then Governor Banwari Lal Purohit referred the mercy petition to the President of India by abdicating his own constitutional power and duty.

Undoubtedly, this gubernatorial action goes against the well-established constitutional position and judicial rulings on the issue of mercy petitions under Article 161 of the Constitution. This also sets a bad precedent for our federal constitutional democracy. The Governor cannot be allowed to override the elected government’s decision.

The Governor knows very well about his constitutional powers, functions, and duties. He has all resources at his disposal to receive necessary legal and constitutional inputs from the experts while deciding the mercy petitions. The government assists him in the entire process. The Governor can also consult the Advocate-General or even other constitutional lawyers if he deems it appropriate to decide a mercy plea. In addition, there is a series of judgments of the Apex Court relating to the mercy jurisprudence which does not leave any scope for doubts on this important issue.

In 1980, in the Maru Ram case, Justice V R Krishna Iyer had categorically observed that the Governor is bound to exercise his pardoning power on the aid and advice of the Council of Ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise 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. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh’s case. So, we agree, even without reference to Article 367 and sections 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, 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. Article 74, after the 42nd Amendment, silences speculation and obligates compliance. The Governor vis-a-vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government”, Justice Iyer had opined brilliantly.

Subsequently, the Supreme Court also reiterated this view in several other cases like Kehar Singh case, Swarna Singh case, Bikas Chatterjee case, Epuru Sudhakar, Shatrughan Chauhan case, etc. All these rulings clearly indicate that the Governor is bound to exercise his pardoning power on the aid and advice of the elected government and cannot disregard the ministerial advice.

Thus, in Perarivalan’s case, the Governor of Tamil Nadu had no reason to refer the mercy petition to the President of India. It is nothing but a delaying tactic on the part of the Governor. The Governor should have decided on the mercy plea according to the advice of the State Cabinet. The Governor’s power under Article 161 is entirely different from the President’s power under Article 72 of the Constitution.

The President is not an appellate authority over the Governor in the disposal of mercy petitions. Given this situation, the President of India may consider returning the file to the Governor of Tamil Nadu so that he may decide the mercy petition of Perarivalan himself on the aid and advice of the State Cabinet. The Governor cannot refer each and every matter to the President of India.

The Mercy Petition is not a Bill passed by the Legislative Assembly which needs President’s assent in certain circumstances. It is a constitutional right of a citizen to seek mercy from the Head of the State and the elected government is competent to advise the Governor to exercise his power.

All constitutional functionaries are duty-bound to protect the fundamental rights of the citizens. It is high time the Supreme Court steps in and shows the rule book, (the Constitution), to the Governor and the Centre for protecting the personal liberty and dignity of the citizens.

Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider