Legal Notes by Arvind Datar: The Governor’s Inaction and Judicial Review
In a benchmark ruling, the Supreme Court exercised its powers under Article 142 and did exactly in 2022, what the Governor of Tamil Nadu ought to have done in 2018. By a co-incidence, the scope of powers of the Supreme Court under Article 142 and the powers of the Governor under Article 161 were considered 60 years ago by a Constitution Bench in K.N.Nanavati v. State of Bombay. A more detailed reference to this case will be made later in this article
Perarivalan was one of the accused in the Rajiv Gandhi assassination case. Briefly, he was initially convicted and sentenced to death by the trial court. This was upheld by the Supreme Court in 1999, although his conviction and sentence under TADA was set aside. The review petition before the Supreme Court was rejected and so were mercy petitions before the Governor of Tamil Nadu and the President of India. A writ petition to challenge the mercy petition ultimately resulted in the death sentence being commuted to imprisonment for life. This was ordered on February 18, 2014.
In 2015, Perarivalan filed a petition under article 161 for remission of his sentence. His case took an important turn when the Tamil Nadu Cabinet passed a resolution on September 9, 2018 recommending his release and this was sent to the Governor.
The facts show that a final report of the multi-disciplinary monitoring agency was still awaited. Initially, the High Court was informed that the Governor had not taken a decision on the recommendation of the State Cabinet for remission because the final report of this monitoring agency was awaited. Surprisingly, the CBI filed an affidavit informing the Supreme Court that the Governor’s office had made no request for any report of the monitoring agency. In January, 2021, the Supreme Court was informed that the Governor would take a decision on the petition under Article 161 without further delay. It appears that four days later, the Governor by his order dated January 25, 2021, decided that the President was the appropriate authority to decide the petition for remission made by the Perarivalan.
The Supreme Court rightly observed that there was nothing in Article 161 which required the Governor to refer the matter to the President of India. The Court reiterated the principle that the Governor, under our Constitution, was nothing but a short-hand expression of the State Government. The immunity to the action taken by the Governor under Article 361 could not be a bar for the exercise of the powers of the Supreme Court under Article 142.
The sending of the recommendation to the President was contrary to the constitutional scheme. It also noted that the Governor forwarded the recommendation only after the Supreme Court started enquiring about the reasons for the decision being delayed. The important point in this case is that the failure to exercise the power under Article 161 prompted the court to step-in and pass the order of remission which the Governor ought to have done under Article 161.
The power of judicial review of the Governor under Article 161 or of the President under Article 72 has been held to be liable to judicial review. In Bikas Chatterjee v. Union of India, (2004) 7 SCC 634, after considering earlier cases, judicial review was held to be permissible under five circumstances:
The Governor exercising the power under Article 161 himself without being advised by the Council of Ministers; or
The Governor transgressing his jurisdiction; or
The Governor passing the order without application of mind; or
The Governor’s decision is based on some extraneous consideration; or
After the latest decision, the power of judicial review will also arise if the Governor fails to exercise his powers within a reasonable time or if he delegates that power to some other authority like the President.
The Nanavati case
In this sensational case, Nanavati was a naval officer and was arrested on the charge of murder. In a trial by a jury, Nanavati was acquitted by a majority of 8:1. However, the High Court disagreed with this decision and convicted the naval officer under section 302 and sentenced him to imprisonment in a judgment dated March 11, 1960. On the same day, the Governor of Bombay suspended this sentence passed by the Bombay High Court until the appeal, if any, filed by him was disposed of by the Supreme Court. In the meanwhile, the naval officer was to be detained in naval jail custody. After elaborate arguments on the scope of Article 142 and Article 161, the majority held that judicial power under Article 142 and executive power under Article 161 can, within certain limits, be exercised in the same field.
Both these articles have to be harmoniously construed as one is not made subject to the other by specific words. Both Articles 142 and 161 contain no words of limitation. Rejecting the plea of Seervai, the majority held that the order of the Governor granting suspension of the sentence could only operate until the matter became sub-judice before the Supreme Court. Once the special leave petition was filed, it was the Supreme Court which has to decide whether to grant him bail or to pass further orders.
The recent ruling in the Perarivalan case, raises important questions about the exercise of powers by constitutional functionaries. No time limits have been prescribed for exercise of such powers keeping in mind the high constitutional office involved. But that is precisely the reason why these powers have to be exercised expeditiously and in the manner contemplated by the Constitution. The Perarivalan case was one instance where powers under Article 142 were correctly exercised.
Arvind P Datar is a Senior Advocate practicing at the Supreme Court of India and Madras High Court.