Apart from the fact that the Supreme Court judgment in the case of AG Perarivalan, the Rajiv Gandhi case convict, whose release was yesterday ordered by the three-judge bench, resulted in the release of a person after over three decades in custody, the judgment is significant for another reason: it, once again, highlights the brazen and, often, unconstitutional manner in which Governors function.
Ignoring propriety and constitutional principles has become the norm rather than an exception for the Governors, who, instead of acting as the figurehead that the framers of the Constitution intended them to be, start acting like an elected government.
The judgment has an unequivocal message for the Governor: You are not the government and don’t forget that.
For several decades now, the party or the coalition of parties in power at the Centre notwithstanding, the Governor, appointed mainly to act as a bridge between the Central government and the state government, started acting in an extra-constitutional manner. (Misusing) the grey areas in the Constitution with regard to the real extent of his or her power vis-à-vis a democratically-elected government in the state, the Governor, if the party in power at the state was different and in opposition the ruling party at the Centre, began acting as the hatchet person of the Centre.
But, more importantly, as worryingly, the Governor started resorting to stalling tactics to prevent the elected government from doing its job. While doing so, the Governor forgot that as per Article 163, the Governor is bound to act with the “aid and advise” of the council of ministers in the state.
In every instance – the number has grown exponentially over the years – of the Governor choosing not to follow the advice of the state government, he or she cited the second part of Article 163 which allows the Governor to use his or her discretion whenever he or she didn’t intent to follow the advice tendered by the council of ministers.
They conveniently forgot (or chose to ignore) the settled constitutional principle that “the Governor is but a shorthand expression for the State Government”.
One recourse often taken by the Governor to not take an immediate decision on a file sent for his or her signature by the state government was to, without offering any reason for the delays, sit on the file, indefinitely.
Consider this: The Tamil Nadu cabinet passed a resolution on September 9, 2018, recommending the release from prison of Perarivalan. For almost four years, the Governor sat on the file.
So much so that on February 2, 2020, when the Supreme Court asked the counsel for the Tamil Nadu government about the status of the cabinet resolution file awaiting the signatures of the Governor, the bench was informed that the Governor was awaiting the report of the Multi-Disciplinary Monitoring Agency – a reference to the CBI, before taking a decision.
On November 20, 2020, the CBI filed an affidavit saying “no request had been made by the Governor seeking a report of the MDMA”!
The obfuscation didn’t end here. On January 21, 2021, the Solicitor General informed the top court that a decision would be taken by the Governor on Perarivalan’s plea filed under Article 161 for remission of his sentence “without any further delay”. A few days later, on February 4, 2021, the Ministry of Home Affairs informed the court that the Governor had “determined” that the President of India was the “appropriate authority” to decide the petition filed by Perarivalan.
That, in doing so, the Governor conveniently ignored the fact that there is no power granted to him under the Constitution to refer a recommendation of the State Cabinet for the decision of the President of India.
The Supreme Court judgment of yesterday makes a damning observation in this regard. “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,” the bench wrote.
The bench then reiterates the settled law that “the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution” and that “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”.