Constitution of India: Art. 161 – Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases – Appellant, one of the accused in assassination of the former Prime Minister of India-Shri Rajeev Gandhi – Convicted and sentenced to death – Death sentence commuted to life imprisonment – As regards, remission of the sentence of the appellant, reference made by the Governor to the President of India on 25.01.2021, without taking a decision on the recommendation made by the State Cabinet on remission of the sentence of the appellant – Correctness of – Held: The advice of the State Cabinet is binding on the Governor in matters relating to commutation / remission of sentences u/Art.161 – Non-exercise of the power u/Art. 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect – No provision under the Constitution pointed out nor any source of the Governor ’s power to refer a recommendation made by the State Cabinet to the President of India showed – 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 – Recommendation made by the State Cabinet remained pending before the Governor for almost two and a half years without a decision being taken – Only when this 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 – Furthermore, having regard to the appellant’s incarceration for 32 years, no complaint relating to his conduct in jail, his chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition u/Art. 161 for two and a half years after the recommendation of the State Cabinet, it is not fit to remand the matter for the Governor’s consideration – In exercise of power u/Art. 142, the appellant is deemed to have served the sentence – Appellant is set at liberty forthwith – Penal Code, 1860 – Arms Act, 1951 – Explosive Substances Act, 1908 – Passport Act,1967 – Foreigners Act,1946 – Wireless Telegraphy Act,1933 – Terrorist and Disruptive Activities (Prevention) Act, 1987.
Disposing of the appeals, the Court
HELD: 1.1 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 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 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when this 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. [Para 19][1059-E-G]
1.2 This Court is 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. This 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. 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. [Para 20][1060-A-C]
1.3 The Appellant was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that the Appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of the Appellant, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses. Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, it is not appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of the power under Article
142 of the Constitution, the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith. [Para 28][1065B-E]
1.4. The advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution. 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 this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect. 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”. 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. The understanding sought to be attributed to the judgment of this Court in Sriharan’s case with respect to the Union Government having the power to remit / commute sentences imposed under Section 302, IPC is incorrect, as no express executive power has been conferred on the Centre either under the Constitution or law made by the Parliament in relation to Section 302. In the absence of such specific conferment, it is the executive power of the State that extends with respect to Section 302, assuming that the subject-matter of Section 302 is covered by Entry 1 of List III. Taking into account the appellant’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition under Article 161 for two and a half years after the recommendation of the State Cabinet, it is not considered fit to remand the matter for the Governor’s consideration. In exercise of power under Article 142 of the Constitution, the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is already on bail, is set at liberty forthwith. [Para 29][1065F-H; 1066-A-G]
M.P. Special Police Establishment v. State of M.P. (2004)
8 SCC 788 : [2004] (5) Suppl. SCR 1020 - distinguished. Union of India v. Sriharan (2016) 7 SCC 1 : [2015]
(14) SCR 613; Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225; Samsher Singh v. State of Punjab (1974) 2 SCC 831 : [1975] (1) SCR 814; Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC
1 : [2016] (6) SCR 1; Maru Ram v. Union of India (1981) 1 SCC 161; Samsher Singh v. State of Punjab (1974) 2 SCC 831 : [1975] (1) SCR 814; Epuru
Sudhakar v. Govt. of A.P. (2006) 8 SCC 161 : [2006]
(7) Suppl. SCR 81 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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