Governor’s discretion

The discretionary powers of the Governor are once again in the centre of a fresh controversy to decide on the remission of seven convicts from the Rajiv Gandhi assassination case. A Supreme Court bench led by Justice Ranjan Gogoi, while disposing a writ petition, recorded that the petitioner – Perarivalan – had filed an application before the Governor and that the “authority will be at liberty to decide the said application as deemed fit”. Following this, the Cabinet of the Tamil Nadu Government adopted a resolution recommending that the Governor release of seven prisoners under Article 161 of the Constitution.

Subsequently, the Raj Bhavan issued a Press Release explaining that the case involves “examination of legal, administrative and Constitutional issues” and “necessary consultation may be carried out, when required, in due course”. This communique seems to be drafted to give the reader an impression that the Governor is meticulously assessing the merits of the issue at hand; but it does not mention whether the office of the Governor is vested with any such powers to apply his mind and exercise his discretion under the Constitution. 

Article 161 of the Constitution, in short, provides the Governor with the power to “remit or commute the sentence of any prisoner”. The decision taken by the Governor will be subject to judicial review by the constitutional courts. Nevertheless, the question that falls for our immediate attention is whether there is an independent, discretionary power vested with the Governor with regard to Article 161 when read along with Article 163 of the Constitution? In the view of the Supreme Court, speaking through a five-judge bench in Nabam Rebia & Bamang Felix vs. Deputy Speaker, the discretionary power of the Governor is extremely limited and entirely amenable to judicial review. Time and again, the courts have spoken out against the Governor acting in the capacity of an “all-pervading super-constitutional authority”. Even when the exercise of discretion is concerned, a seven-judge bench of the apex court in Samsher Singh vs. State of Punjab has held that the Governor may do so only “in harmony with his Council of Ministers”. In order to do so, the Governor is precluded from taking a stand against the wishes of the Council of Ministers. 

The area being traversed in the present case is alien to our Constitution, not having envisaged a situation where the Governor exercises his power under Article 161 against the express recommendation of the Council of Ministers. Such a decision will result in a tragic evisceration of our Constitution and its founding principles such as the federal structure, Cabinet responsibility and accountable governance. This may also be interpreted, in a more practical manner, as the Governor having lost faith in the State Government with regard to the performance of its executive functions. Either way, to stay true to the spirit of the Constitution and settled principles of law, the Governor should desist from conferring discretionary powers to his office where there are none. 

Manuraj Shunmugasundaram

Advocate and Spokesperson, DMK 

Link to the Article: https://www.thehindu.com/opinion/op-ed/governors-discretion/article25021561.ece

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