who has the power to forgive

The Governor’s powers of pardon or pardon under Article 161 of the Constitution have been in the news with the Supreme Court order. AG Perarivalan’s releaseOne of the seven convicts in the Rajiv Gandhi assassination case. then in 2018 Tamil Nadu cabinet recommended to the governor So that all the seven convicts can be released. The Raj Bhavan sat on the recommendation before sending it to the President for advice. This month, the Supreme Court ruled that a governor is bound by the advice of the state government in matters relating to the commutation/remission of sentence under Article 161. the court exercised its extraordinary power Article 142 To order the release of Perarivalan, who had already spent more than 30 years in prison. This has raised questions about the extent, if any, of the State Government’s recommendation for pardon or pardon to the Governor. In a discussion moderated by Krishnadas Rajagopali, P. Wilson And kaleeswaram rajo Discuss questions arising out of the case, including those relating to the office of the governor, judicial delay and the value of the Perarivalan judgment as a precedent. Edited excerpt:

The Supreme Court’s decision has been seen by the Chief Minister of Tamil Nadu as a victory for federalism and autonomy of the state. Wouldn’t this argument lead to a tendency in future to support any arbitrary decision by a state cabinet regarding waiver or pardon, even if it is tainted by political or other considerations?

P. Wilson: You are talking as if the governor always does the right thing. We have seen that the Governor has become the agent of the party at the Centre. We have seen state governments formed by non-BJP (Bharatiya Janata Party) parties facing difficulties with governors obstructing the implementation of welfare measures by popularly elected state governments. Governors sit on bills passed by state legislatures without performing their duties under the Constitution. The decision of the State Cabinet is binding on the Governor as per the Constitution. The Supreme Court’s decision in the Perarivalan case is a repetition of the same principle. The cabinet represents the people. Therefore, people control the decisions. If people do not like the cabinet decisions, they will vote for the government. Cabinet decisions are subject to judicial scrutiny. There is no danger of arbitrariness. In the present case, the top court has approved the decision of the state cabinet to waive Perarivalan’s sentence, saying that the governor should have acted on it. The allegation of legal error cannot be made in this case.

explained | Forgiveness and Forgiveness, and Who Grants Them

Kaliswaram Raj: The verdict underscores the imperative of federalism in the context of governor’s amnesty. Article 161 is more about the duty of the governor rather than power. It is in no way inferior to the role of the President under Article 72 nor is it replaced by the latter. The governor is usually bound by the decisions of the cabinet. However, this does not mean that an arbitrary decision by the cabinet, due to non-use of mind or external considerations, will compel the Governor. This position is well established. The instrument of judicial review is the most effective inquiry against such aberrations. The current decision does not change this position of the law. It is based on its own peculiar facts and there is no room for apprehension.

The court invoked Article 142 and directed Perarivalan to be released. Ideally it should have been an order that the Governor should have issued. Would it have been proper and desirable for the Court to refer the matter to the Governor? Can Article 142 be extended to such an extent?

P. Wilson: not at all. The Governor had not performed his duty under the Constitution. All authorities are bound by the decisions of the Supreme Court. Gone are the days when we used to say that courts cannot issue directions to governors or even to the President. no one is above the law. The Governor was given sufficient time, opportunity and warning by the Court. The governor was openly disregarding the court’s observations. In such circumstances, the Court is empowered to do complete justice under Article 142. The judiciary is the final arbiter of the Constitution. If the governor does not do his job, the court can pass appropriate orders.

Kaliswaram 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 decision of the state cabinet was huge. This affected the liberty of the person who was legally and constitutionally entitled to be released. The trial went on for decades. The Center contributed to the delay by implementing its usual litigation strategies. The court may have been conscious of this procedural injustice meted out to Perarivalan and felt that the only way to undo it was to invoke Article 142 and release the prisoner. Another dispatch to the governor would have prolonged the trial, which had already crossed all conceivable limits.

Read also | Governor can pardon prisoners, including those sentenced to death: Supreme Court

In the past, looking at instances where the offices of the Governor were used by the Center for political purposes, many have also questioned the necessity of the office of the Governor. Do you think the warning against the governor in this case would persuade us to reconsider the need for nominated governors?

P. Wilson: Definitely. See Constituent Assembly debate on the manner of appointment of governors. The framers of the constitution never thought of giving the governors the same powers as the elected representatives. So the post is nominated and not elected. It is dangerous when one person sits on the decisions of 234 elected representatives as it amounts to removing the very basis of democracy. The powers of nomination should be reconsidered.

Kaliswaram Raj: Many people think so. I am from Andhra University Prof. R. Venkata Rao, who indicated that the post of governor is “useless when inactive and dangerous when active”. Ironically, the governor’s inaction in the Perarivalan episode also proved dangerous. Nevertheless, I do not share the view that abuse of a position is a reason to end it. In the federal system, the governor has to perform many duties. 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 “separate person and not too closely connected with the local politics of the state”. The point is to ensure that the governor acts within the constitutional framework. Eliminating the post may create more problems than it wants to solve.

News Analysis | The ‘Governor cannot use his ‘conscience’ and must strictly follow the ‘aid and advice’ of the cabinet.

In recent times, the Supreme Court has been criticized for its slowness in deciding important matters, especially those with political overtones. Demonetisation, abrogation of special status for Jammu and Kashmir, validity of electoral bonds, etc. are some of the instances in which the court has stayed the decision and invited criticism. Do you think Perarivalan’s verdict is a welcome change in the approach of the court?

P. Wilson: Generally, these criticisms are inappropriate and are made by people who do not know how hard the organization is working. Did you know that India has one of the lowest judge-to-population ratios in the world? The Central Government is not appointing judges of High Courts and Tribunals on time despite the recommendations of the Supreme Court. During COVID-19, our country’s judiciary has heard and dealt with an incredible number of cases. It works better than the judiciary in other countries. Had there not been a court order, the oxygen supply to the states would not have been uniform during the second wave. I see a court that is very sensitive to human rights violations. Despite the state’s decision to release a man, he was kept in prison. This is certainly a matter that needs the intervention of the court.

Kaliswaram Raj: Court is not stable. It depends on several factors such as the person running it and the overall constitutional environment. There have been some good judicial interventions from the Supreme Court in the recent past. It rejected the Centre’s stand on important matters like the Pegasus issue and the sedition law. It cannot be an ideal Supreme Court. Still, it is the Supreme Court of possibilities.

What exactly is the significance of the Perarivalan verdict in setting precedent?

P. Wilson: First, the decision states that the governor has a duty to comply with the recommendations of the state cabinet while discharging his functions, which include the power to remove, suspend or reduce sentences under Article 161. Second, an important finding is that the Governor needs to have not referred the matter to the President. Third, it is the duty of the governors to exercise their powers in time. Fourth, the judgment recognizes the power of the state in matters of exemption, commutation etc. Fifth, the verdict upholds the human rights of prisoners.

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

Kaliswaram Raj: The judgment is precise and clear. It runs into only 29 pages. This is similar to the UK Supreme Court’s Brexit decision, which interfered with Boris Johnson’s decision to prorogue Parliament. Conciseness is a universal quality for constitutional analysis. Judgment refers to a great deal of judicial discipline by following established principles of law. Nevertheless, the court invoked Article 142 to do “complete justice”. The juridical value of the judgment lies in the idea of ​​”absolute justice” applicable to the given facts and circumstances. This is something unprecedented.

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

P. Wilson: Justice delayed is justice denied. Every organ of government has to work towards the protection and promotion of human rights. We cannot allege delay without giving necessary infrastructure to the courts. The Chief Justice of a High Court mentioned judicial vacancies in various High Courts during an informal conversation during a visit to my Parliamentary Committee on Law and Justice. He asked whether we would allow Parliament to function only at 50% strength without holding elections. Why, then, are the High Courts left to function with 50% strength? If you give infrastructure to the judiciary, it will work faster. We need regional benches of the Supreme Court to reduce the workload. Raise the retirement age of judges to 70. If these changes are made, I can assure you of the results.

Read also | Governor is ‘but a shorthand expression for state government’, says Supreme Court

Kaliswaram Raj: There are many dimensions to the decision. This shows the importance of discovery of cause by the litigants, their lawyers, the court and the media. It was a hard-won battle. At the end of the day, the decision upheld the freedom and dignity of the individual, the basic promises of the Constitution. It is a ruling on Fundamental Rights, though it does not explicitly say so. It frees the individual(s) from the clutches of the powerful state, using the very apparatus of the state. That is its beauty and strength.

Kaleeswaram Raj is a Supreme Court lawyer; P. Wilson is Senior Advocate in Rajya Sabha and DMK MP