B.R. Ambedkar while addressing the Constituent Assembly once said, "The Governor under the Constitution has no functions which he can discharge by himself: no functions at all. While he has no functions, he has certain duties to perform." Despite the Constitution's provisions defining the Governor as a formal head who, unless otherwise stated, can only act on the advice of the Council of Ministers, the people who assumed this position post-independence have not lived up to the expectations of the framers of the Constitution.

Numerous Governors have engaged in abuse of their gubernatorial power and have acted as the agents of the Union Government. In this piece, we will discuss the judgment of the Supreme Court in A.G. Perarivalan v. State of Tamil Nadu which highlights the misuse of gubernatorial power.

The Supreme Court[1] on 18.05.2022, decided to release A.G. Perarivalan who is one of the convicts in former Prime Minister Rajiv Gandhi's assassination case which was carried out on 21.05.1991 in Sriperumbudur, Tamil Nadu. A bench comprising Justice L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna exercised its power under Article 142 of the Constitution to release Perarivalan due to the inexplicable delay by the Governor of Tamil Nadu in exercising his powers under Article 161 of the Constitution[2].

Background of the case
A.G. Perarivalan, aged 19, was arrested in 1991 and was accused of supplying two 9-volt batteries to Sivarasan, the mastermind of the conspiracy to assassinate former PM Rajiv Gandhi.[3]

In 1998, Perarivalan was sentenced to death by the TADA court which was upheld by the Supreme Court in 1999 but his conviction and sentence under the Terrorism and Disruptive Activities (Prevention) Act were set aside. Perarivalan filed a mercy petition with the President which was rejected 11 years later in 2011. The Supreme Court commuted the sentence of the death penalty since the court found the delay to be violative of procedural due process guaranteed under Article 21 of the Constitution in the year 2014.

In 2014, the Tamil Nadu government under section 432 of the CrPC which deals with powers of Central and state governments to remit or suspend sentences, ordered the release of all seven convicts including Perarivalan but the Supreme Court stayed the release. Perarivalan submitted another remission petition under Article 161 before the Governor of Tamil Nadu in 2015. In 2016, the Tamil Nadu government sent an official proposal to the Union government seeking remission for all seven convicts but the government rejected the proposal in 2018 stating, "releasing of killers of former PM will set a very dangerous precedent. The case has been decided by various forums of judiciary and executive and the prisoners do not deserve to be set free."

On 09.09.2018, the State Cabinet of Tamil Nadu passed a resolution to release all seven convicts under Article 161, including Perarivalan and sent it to the Governor. The Governor of Tamil Nadu neither decided on the resolution of the State cabinet nor on the remission petition filed by Perarivalan in 2015.

He moved to the Supreme Court seeking suspension of his sentence. In January 2021, the Governor of Tamil Nadu referred the resolution of the State Cabinet to the President after sitting on it for more than two and half years, specifying that he is the competent authority to take the decision on the recommendation of the State Cabinet.

The judgment
The Supreme Court held that the Governor is required to exercise his power with the advice of the State Cabinet is binding on the Governor in the exercise of power in matters related to commutation/remission under Article 161. The judgment states, "Governor is but a shorthand expression for the State Government."

The Court also found the move of the Governor of Tamil Nadu to refer the State Cabinet's recommendation to the President to be "contrary to the constitutional scheme," since it violates federalism and the parliamentary system of government established by the Constitution. The Court reiterated that it will have the power to judicial review the orders of the Governor on certain grounds under Article 161. Hence, non-exercise of power by the Governor or inexplicable delay on his part is subject to judicial review by the Supreme Court.

The Supreme Court found that executive powers of the States extend to offences under section 302 of the Indian Penal Code. Mr. K.M. Natarajan, Additional Solicitor General of India, argued, relying on M.P. Special Police Establishment v. State of M.P[4], that the appropriate government for deciding on commutation/remission, in this case, is the Union Government. The Court found that the above-mentioned judgment is not applicable in this case.

The Court using its special powers under Article 142 of the Constitution released Perarivalan due to the pendency of his petition with the Governor under Article 161 after two and a half years after the recommendation of the State Cabinet.[5]

Analysis of the verdict
The Court rightly reiterated its position on the powers of the Governor by relying on Shamsher Singh v. State of Punjab[6] and Maru Ram v. Union of India[7]. Governor is a constitutional head of the State who exercises all his powers with the aid and advice of the Council of Ministers headed by the Chief Minister except required by the Constitution to exercise his discretion[8].

In this case, the Governor of Tamil Nadu was bound by the recommendation of the State Cabinet dated 09.09.2018 to release A.G. Perarivalan since the Governor is bound to follow the State Cabinet's advice under Article 161.

The Governor of Tamil Nadu acted ultra vires to the Constitution by sending the recommendation of the State Cabinet to the President that too after sitting on it for two and half years. Such an act by a Governor of a state is against federalism which is part of the basic structure of the Constitution[9].

Courts have limited power of judicial review on decisions taken by the Governor or President under Article 161 or 72 of the Constitution. The courts can interfeare on very limited grounds such as non-application of mind while passing the order, non-consideration of relevant material, or if the order is arbitrary on the orders passed under Article 161. The apex court invoked Epuru Sudhakar v. Govt. of A.P[10] to reiterate the earlier ruling that actions under Article 161 are subject to judicial review on account of non-exercise of power.

The court decided to release A.G. Perarivalan after taking into account his 32-years-long incarceration, good conduct in the jail and while on parole, medical conditions, and certifications and courses he completed while in jail. On account of more than two and half years of delay on the Tamil Nadu Governor, Court didn't deem it fit to remand the matter for Governor's consideration and decided to release Perarivalan using its power under Article 142. The question that can be raised here is whether the court is right in exercising its power under Article 142.

The power provided under Article 142 to the apex court remains uncertain and undefined. The power is used generally to fill the legislative gaps and to grant relief in certain cases that are outside the scope of applicable statutory law. In this case, the court has rightly used its powers under Article 142 to do complete justice to Perarivalan since the Governor has personal immunity[11], and neither the performance of a constitutional duty by the Governor nor the failure to perform such an obligation could be held up to judicial scrutiny.

The way forward
The judgment in A.G. Perarivalan v. State of Tamil Nadu by the Supreme Court is in line with its previous decisions. The decision effectively reiterated that the advice of the State Cabinet is binding on the Governor and non-exercise of power under Article 161 is subject to judicial review. It clarified the position of law on the conflict between the pardoning powers of the Governor and the President. The court also took a rehabilitative approach by exercising its powers under Article 142 of the Constitution to release A.G. Perarivalan after 32 years of incarceration.

The Court left some issues unaddressed in the judgment. Issues such as the appointment of Governors by the Union Government, tenure of Governors, no-specified time period for acting on the advice of the State government, and personal immunity provided under Article 361, still leave room for a Governor to act ultra vires to the Constitution.

As recommended by the Sarkaria Commission, the Governor should be appointed after consultations with the Chief Minister, the Vice-President, and the Speaker of the Lok Sabha. The Governor should enjoy a term of five years and should only be removed if aspersions are cast on his morality, dignity, constitutional propriety, etc. In addition, a fixed time period should be specified in the Constitution for the Governor to decide on a matter under Articles 161 which will prevent such exploitation of loopholes in the Constitution.

End-Notes:

1. AG Perarivalan v State of Tamil Nadu 2022 SCC OnLine SC 755
2. The Constitution of India 1950, a 161.
3. Arun Janardhanan, 'Explained: The story of Rajiv Gandhi assassination convict A G Perarivalan, and his mother' (Indian Express, 19 May 2019).
4. MP Special Police Establishment v State of MP, 2004 8 SCC 788.
5. The Constitution of India, a 142.
6. Shamsher Singh v State of Punjab 1974 AIR 2192.
7. Maru Ram v Union of India 1981 1 SCC 107.
8. The Constitution of India, a 163.
9. Kesavananda Bharati v State of Kerala, 1973 4 SCC 225.
10. Epuru Sudhakar v Govt. of A.P., 2006 8 SCC 161.
11. The Constitution of India 1950, a 361.