In the context of Rajiv Gandhi Assaination Case, the Supreme Court on 4 May 2022 didnot accept the Union Government’s suggestion that the courts can wait for the President’s decision on the mercy plea filed by A.G Perarivalan. A G Perarivalan was arrested by CBI in 1991, at the age of 19, for supplying two batteries to the conspirator of the assasin Sivarasan. In 1999, he was awarded death sentence which was commuted to life sentence in 2014. After being in prison for nearly 30 years, he was granted bail in 2022.

Governor’s right to reserve mercy plea for President’s Consideration

According to Article 200 of the Constitution of India, once a bill is presented to the Governor, he has the right to declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.
The constitution of India clearly mentions the right of the Governor to reserve the bill for the consideration of the President. It is mentioned explicitly that it is mandatory for the Governor to reserve a bill to the President, if in his opinion it would derogate the powers of the High courts. But does the Governor have to authority to reserve a mercy plea or petition for the President’s consideration. Or should he abide by the decision of the state cabinet? Should the court wait for the President to decide on the petition?

Article 161 empowers the Governor of a state to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. As per the SC’s recent observation, the governor doesnot have the constitutional right to reserve a mercy plea for the consideration of the President.

Article 163 of the constitution of India makes it binding for the Governor to act as per the advice of the Chief Minister at the head of council of ministers except when the constitution empowers him to act according to his discretion.

Considering the above articles of the constitution, it must be infered that the constitution doesnot provide the option for the Governor to reserve for the President’s consideration in the case of mercy petitions as per the Article 161.

The question whether the Governor was right in referring the State Cabinet’s wish to the President, instead of exercising his duty under Article161, has to be decided by the court

Justice L. Nageswara Rao
Supreme Court of India

Points for reference

  • In Purshothaman v. State of Kerala, Supreme Court held that there is no time limit for granting the assent.
  • The Constitution does not furnish any guidance to the Governor – in which matters he should accord his assent and in which matters he should withhold assent.
  • In Hoechst Pharmaceuticals v. State of Bihar 1983, SC held that the Governor’s power to reserve for the consideration of the President cannot be questioned in court.
  • The Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
  • Article 72 of the consitution empowers President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.
  • Article 72 (3) states that the
    Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
  • Article 156 (1) The Governor shall hold office during the pleasure of the President
  • Article 161 The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
  • Article 163 (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
    (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.

Sarkaria Commission Report on CENTRE STATE RELATIONS

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