In AG Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr. reported in (2023) 8 SCC 257 the facts germane for our discussion are that the appellant convict therein had filed a mercy petition under Article 161 to the Governor in December, 2015. The State Cabinet recommended the grant of remission to the Governor in 2018. However, the Governor did not take any decision on the mercy petition for two years despite receiving the recommendation of the State Cabinet.
Thereafter, upon a direction of Supreme Court, the Governor in 2021, by an order, forwarded the mercy petition of the appellant to the President citing that the Union is the appropriate authority to decide the same.
This reference came to be challenged before Supreme Court wherein it was held as under:
(i) First, it was held that 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”. The Court observed that although the Governor is the head of the executive in the State, yet in actuality, it is the Council of Ministers that carries on the executive Government. It held that as per Article 163, the Governor shall exercise his functions provided under different provisions of the Constitution only under the aid and advice of the Council of Ministers except where he under the Constitution has been expressly authorised to exercise such functions in his discretion.
Supreme Court, speaking through L. Nageswar Rao, J., described this relation of the Governor and the Council of Ministers as “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”. The relevant observations read as under:
“18. 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. Article 163 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 insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
19. 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.
20. 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.
21. 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.”
(ii) Secondly, it observed that the law is clear and explicit – the advice of the State Cabinet is binding on the Governor when it comes to the exercise of powers under Article 161. In the absence of any other provision under the Constitution or any statute in this regard, the Governor could not have deviated from the binding recommendations of the State Cabinet and referred the mercy petition to the President. It was held that such an action is contrary to the constitutional scheme.
The relevant observations read as under:
“24. The law laid down by Supreme 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 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when Supreme 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.” (Emphasis supplied)
(iii) Thirdly, as regards the inaction of the Governor in deciding the mercy petition for more than two-years, Supreme Court held that although there is a certain degree of immunity with respect to the exercise of powers by the Governor under the Constitution, yet it is an equally settled position that the courts have the power to judicially review the functioning of the Governor on certain grounds. It held that a non-exercise of these powers, such as, under Article 161 is one such ground for the exercise of judicial review as the said provision pertains to the liberty of individuals and any inexplicable delay not on account of the prisoners, is inexcusable. The relevant observations read as under:
“24. […] It is relevant to point out that the recommendation made by the State Cabinet was on 9-9-2018, which remained pending before the Governor for almost two-and-a-half years without a decision being taken. It was only when Supreme 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.
25. We are 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 Supreme Court in numerous decisions, Supreme 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 Supreme Court in Epuru Sudhakar v. State 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.”
(iv) Lastly, as regards the contention of the respondents that the decision of the Governor to forward the mercy petition to the President was done in exercise of his discretion owing to the irrational recommendation of the Cabinet in line with the ratio of M.P. Special Police (supra), Supreme Court held that the aforesaid decision would not be applicable, since there is nothing to make out a case of irrational or non-consideration of relevant factors by the State government to warrant the Governor exercising his discretion and deviating from their recommendations as laid down in M.P. Special Police (supra). The relevant observations read as under:
“29. We are afraid that the judgment of Supreme Court in M.P. Special Police Establishment is not applicable to the facts of the present case. No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the State Cabinet having based its recommendation on extraneous considerations. Moreover, in the said case, the Governor had taken a decision which was subsequently challenged, unlike the present case, where the Governor has merely forwarded the recommendation made by the State Cabinet to the President of India.”
Accordingly, Supreme Court held as under:
“38. In conclusion, we have summarised our findings below:
38.1. The law laid down by a catena of judgments of Supreme Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
38.2. Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by Supreme Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.
38.3. The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two-and-a-half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby “the Governor is but a shorthand expression for the State Government” as observed by Supreme Court.
38.4. The judgment of Supreme Court in M.P. Special Police Establishment has no applicability to the facts of this case and neither has any attempt been made to make out a case of apparent bias of the State Cabinet or the State Cabinet having based its decision on irrelevant considerations, which formed the fulcrum of the said judgment. […]”