Given the fact that the President and the Governors are the executive heads and that pardoning power, being of a different flavour and design, is traditionally exercised by the executive heads, the question arises as to whether this power should be subjected to the aid and advice tendered by the Government.

 

 

Historically, sovereigns have always been vested with the power of clemency. It has, since time immemorial, qualified as a plenary power of the sovereign monarch. With the advent of the era of democracy, it became difficult to trace the location of sovereignty. The relationship between the ruler and the ruled underwent a radical change. The rule of law, Constitutionalism, and other principles limiting the power of Government and seeking to curtail arbitrariness in the exercise of powers by the State have now been regarded as sacrosanct. Hence, the pardoning power, too, like all other powers of Government, is subject to these sacrosanct principles.

In India, Articles 72 and Article 161 of the Constitution confer this power upon the President of India and the Governors of the various States, respectively. Given the fact that the President and the Governors are the executive heads and that pardoning power, being of a different flavour and design, is traditionally exercised by the executive heads, the question arises as to whether this power should be subjected to the aid and advice tendered by the Government. Herein, we are concerned specifically with the pardoning power exercised by the Governor under Article 161. Under the Indian Constitutional set up, the Governor of the State is expected to act on the aid and advice of the Council of Ministers (hereinafter to be referred as “COM”), which is headed by the Chief Minister. Article 163 of the Constitution of India makes this clear.

However, it is pertinent to note that if the Constitution requires the Governor to act in his discretion, then the aid and advice need not be considered. This, too, is apparent on perusal of Article 163, which clearly stipulate that if the Governor is, by or under the Constitution, required to exercise his functions or any of them in his discretion, then he shall not be required to consider the aid and advice of the COM. In this article, we shall examine whether the pardoning power under Article 161 is one such function wherein the Governor is required to act in his discretion and not on the aid and advice of the COM. The Supreme Court has already answered the question, which we discuss herein in a few landmark judgements. It has opined that the pardoning power of the Governor is to be exercised on the basis of aid and advice of the State Government. We argue that the view taken by the Supreme Court in these judgements is flawed and needs reconsideration.

PARDONING POWER UNDER ARTICLE 161

The very title of Article 161 reflects that it confers a “power” on the Governor to grant pardons. The language of the said provision is unequivocal. It clearly lays down that the Governor has the power to grant pardons, reprieves, etc. to persons convicted of offenses against any law relating to a matter to which the executive power of the State extends. Article 161 is broadly worded and does not contain any restriction as to the time at which the said power is exercised or the circumstances or manner in which it is to be exercised. However, a reference to the interpretation of this provision by the Supreme Court makes it clear that the power contained therein is to be exercised by the Governor as per the aid and advice of the council of ministers.

In Epuru Sudhakar’s case, Kapadia, J concurring, held that the executive power of the Governor to grant clemency has to be exercised by him on the aid and advice of the COM. It is submitted that such a ruling was wholly unnecessary given the facts of the said case. It is opined that the said ruling cannot be considered to be the ‘ratio’ and hence is not binding. In the Satpal case, and the Narayan Dutt case the Court has expressed similar views regarding aid and advice of the COM.

The exercise or non-exercise of the pardoning power by the Governor is not immune from judicial review. Limited judicial review is available in certain cases. The Court will refrain from examining the propriety or sufficiency of the reasons to exercise this power in a particular case; nevertheless, the Court may interfere if the Governor exceeds his powers under the constitutional scheme. For instance, in cases where the clemency power is exercised arbitrarily, mala fide or in absolute disregard of the Constitutionalism, the Courts will interfere. A conspectus of the law laid down by the Supreme Court in this regard reveals that;

  1. According to the Courts, clemency power is to be exercised on the aid and advice of the COM.
  2. Exercise of pardoning power can be subjected to Judicial Review in certain cases.

It is now necessary to discuss the nature of the “discretionary power” of the Governor referred to in Article 163.

‘DISCRETION’ OF THE GOVERNOR

The makers of the Constitution pointed out two reasons for conferring discretionary powers to the Governor, viz: a) Governor has to serve as the agent of the Central Government in the State; b) he is the important link between the Centre and the State to maintain unity and integrity of India. The usual rule is that the Governor acts on the aid and advice of the COM and not independently or contrary to it. However, there are few exceptions carved out to this general rule, and, as held by the Supreme Court, these exceptions are not exhaustive. At this juncture, it is imperative to point out that whether a function falls within the Governor’s “discretion” or not is to be determined by the Governor himself. He is the final and sole judge to decide whether a function is to be exercised in his discretion or on the advice of his COM. Article 163(2) of the Constitution is unequivocal in this regard. Hence, a discussion on the nature of the power under Article 161 will have to proceed by keeping Article 163 at the forefront. Firstly, it is necessary to settle whether the Governor can exercise his pardoning power without the aid and advice of the State Government. Secondly, whether the Governor can go against the advice offered by the appropriate Government also needs to be answered. A provision analogous to Article 163, pertaining to the exercise of discretionary powers by the President of India does not exist. Hence, this discussion has been limited to the pardoning powers to be exercised by the Governor.

Under the Indian constitutional scheme, the Governor may take several categories of action in discretion. Governor has special responsibilities concerning certain regions, and this power is discretionary, i.e., without aid and advice of the COM. For instance, there are special provisions for Nagaland, Manipur, Arunachal Pradesh, Sikkim, etc. Also, the appointment of the Chief Minister largely falls under the discretionary power of the Governor. The Governor in making the appointment of Chief Minister under Article 164(1),”acts in his sole discretion.” Similarly, in S. Dharmalingam case, where the appointment of the Chief Minister was challenged, the Madras High Court held that the appointment falls wholly within the discretionary power of the Governor, which draws its power through Article 163.

Article 356 is an example where the Governor has a wide aperture to use his discretionary powers. The President has to consider the Governor’s report before imposing President’s Rule under Article 356. In the case of Nabam Rebia, few members of the party had defected, and a no-confidence motion was initiated. The COM advised the Governor to prorogue the Assembly. Here, the Apex Court opined that the Governor has the right to reject this suggestion of the COM who had lost the confidence of the House and ask them to face the verdict of the motion. Also, where there is a reason to believe that the Government in power no longer enjoys majority support, it is open to the Governor to conduct a floor test to determine the majority whenever he pleases. Thus, it is clear that the contours of discretionary functions of the Governor where he is not required to act as per the aid and advice of the COM are not as narrow as they are made to appear. Additionally, the Court has not devised any strict standard to determine whether a particular function is a “discretionary function” or not.

We submit that the clemency powers which are exercised to the Governor under Article 161 on the aid and advice of the COM should be read in light of Article 163. In view of Article 163, it is argued that the pardoning powers fall under the ‘discretionary’ functions of the Governor. For the exercise of pardon, the personal satisfaction of the authority, which in this case is the Governor, is of utmost importance. The personal satisfaction element is taken away due to the fetters of the aid and advice of the COM. It is imperative to note that the Supreme Court in the MP Special Police Establishment case, there cannot be an exhaustive list of all those functions of the Governor, which can qualify as discretionary and which can be carried out by the Governor without the aid and advice of the COM. Moreover, the express language of Article 163 makes it clear that it is for the Governor to decide whether a particular function is a discretionary function, and his decision in this regard cannot be questioned. In view of this, the Supreme Court has erred in holding that the Governor’s pardoning power is to be exercised as per the aid and advice of the COM.