[This is a guest post by Pradhyuman Singh, first posted on the Proof of Guilt blog, and cross-posted here with permission.]
On 18th May 2022, the Supreme Court ordered the release of A.G. Perarivalan, a conspirator in the assassination of former Prime Minister Rajiv Gandhi, by exercising its inherent power under Article 142 of the Constitution. Perarivalan, having been found guilty on a number of charges, the State of Tamil Nadu wished to issue a pardon in his favour. To this effect, the Council of Ministers of Tamil Nadu advised the Governor to issue a pardon. The power of the Governor of a State to issue pardons is traceable to Article 161 of the Constitution. As granting pardons is a function of the Governor, it is also pertinent to read this power/function with Article 163 of the Constitution. Article 163 requires the Governor to exercise her functions on the aid and advice of the Council of Ministers. Therefore, the Governor is mandated to act on this advice, being the nominal Executive Head of the State.
In this case, the advice of the Council was tendered on September 9, 2018 and no action was taken by the Governor. Instead, the Governor submitted the matter to the President for his consideration. The Governor used this reason as a justification for the delay in implementing the mandatory advice of the Council. The Supreme Court held that such abstinence was in violation of the Governor’s duty under the Constitution. Thus, to do complete justice, the Supreme Court itself ordered the grant of pardon in favour of Perarivalan, resulting in his release.
Predictably there has been considerable publicity on this order of the Supreme Court. Amongst the various opinions on the order, (Retd.) Justice V. Parthiban, an erudite judge of the High Court of Madras has also expressed his criticism on many fronts. One particular criticism was that the Supreme Court did not consider the attraction of Section 435 of the Code of Criminal Procedure, 1973 (“CrPC”) to the case. This specific contention will be the focus of this post.
Sections 432-434 of the CrPC provide a statutory power to the President/Governor to remit, commute or suspend punishment of offences. Section 435 provides that if the State Government (i.e. the Governor, as per Section 3(60), General Clauses Act, 1897) wishes to exercise power under Section 432 or 433, and-
- The offence in question has been investigated by the Central Bureau of Investigation; or
- The offence involved damage to property of the Central Government; or
- The offence was committed by an employee of the Central Government,
– the Governor would be obligated to exercise such powers only after “consultation” with the Central Government. “Consultation” here has been interpreted to mean concurrence by the Supreme Court (Union of India vs V. Sriharan). In the facts of this case, the investigation of the offences was carried out exclusively by the Central Bureau of Investigation, thus attracting Section 435 of the CrPC.
At first sight, it may seem that such powers of the Governor under the Constitution stand on a different footing from the statutory power. In no manner can the provisions of the CrPC control the ambit of Article 161 of the Constitution (which stipulates no such requirement of consulting/concurring with the Central Government). However (Retd.) Justice Parthiban emphasises that the decision rendered by the Supreme Court in Sriharan (by a Constitution Bench nonetheless) requiring mandatory concurrence of the Central Government would then be rendered completely nugatory. All that would be required is for the Governor to claim that her power is being exercised under the Constitution and not the CrPC. The entire scheme of statutory powers of the Governor/President to remit, commute or suspend sentences would become redundant.
Further, the Supreme Court on another occasion (K.M Nanavati vs State of Bombay) has also held that Articles 72 and 161 embody the “prerogative power” of the President/Governor. Since there is no express provision in the Constitution saving these provisions from legislative interference, the English common law as to Prerogatives applies to the pardoning power under our Constitution. As a result of this, these powers may be fettered and controlled by legislation. Thus, what would otherwise be a simple matter of examining the relationship between the statute and the Constitution becomes complex. This is due to the scheme of the CrPC historically having analogous powers of remission, commutation and suspension of sentences ever since its recognition in the Code of Criminal Procedure, 1898 (the predecessor to the present CrPC).
This post will enquire into the context with which parallel powers of remission, commutation and suspension exist in our statutory framework, despite our Constitution exhaustively providing for the same. Accordingly, we may determine the relationship between these laws and the legal implications that follow.
History of the Code of Criminal Procedure
The Code of Criminal Procedure, 1898 (“Code”) first recognised the power of the Governor-General of British India to remit, commute and suspend punishments of offences. This power found expression in the form of Sections 401 and 402 of the said Code. At the time, there existed no grundnorm resembling the Constitution, and so the power of the Governor General was exclusively governed by the aforementioned provisions of the Code.
This changed with the eventual enactment of the Government of India Act, 1935 with Section 295. Section 295 was the template for the drafting of Article 72 and 161 of the Constitution, which vested the power to suspend, remit or commute a sentence with the Governor-General as well. The phraseology adopted by Section 295 is as follows-
“Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act…” [Emphasis Supplied]
Thus, the Government of India Act, 1935, a legislation passed in the British Parliament, gave deference to ordinary laws to regulate the powers of the Governor General in this respect. The intent behind such a provision in the Government of India Act, 1935 was to merely give passive recognition to the power of the Governor General (which was to continue to operate through the statute, i.e. The Code of Criminal Procedure, 1898) and to make clear that such powers would not interfere with the King’s power to issue pardons or remit, commute or suspend sentences (as provided in Section 295(2)). In this manner, the statutory framework of the Code had a functional purpose in recognising the power of the Governor-General. The provisions of the Code worked in perfect harmony with the Government of India Act, 1935.
Such was the arrangement until the enactment of our Constitution. Section 295 of the erstwhile Government of India Act, 1935 was significantly changed to give us what we have as Articles 72 and 161 today. As is clear from the language of these Articles, the power of the President/Governor to remit, commute or suspend sentences was expressly recognised in the Constitution itself. Marking a clear departure from the previous position, there was no deference given to any statutory framework that would determine the powers of the President/Governor. However, the makers of the Constitution chose to still passively recognise the statutory powers of the Governor to remit, commute or suspend sentences. This was in the form of Article 72(3) which provides-
“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.” [Emphasis Supplied]
The purpose of this clause is to clarify that the power of the President conferred by Article 72(1)(c) should not be construed to exclude the power of the Governor in any manner. However, in stating so, the makers chose to express that the power of the Governor under “any law” was not to be affected. It was equally open for the draftspersons to make a direct reference to Article 161 of the Constitution in this provision. Rather, a conscious decision was made to also recognise any statutory powers vested in the Governor. The implications of this will be examined in the following section of the post.
Moving on, once the Constitution was brought into force, the provisions of the Code were also amended. Article 72(1)(c) of the Constitution recognised the power of the President to remit, commute or suspend the sentence of death. Ordinarily, the President exercises powers with respect to offences in the Union List and the Governor in the State List respectively. An exception is made in the case of death where both the President and Governor exercise concurrent powers. To accommodate this concurrent power, Section 402A was introduced in the Code, vide an amendment. This Section too recognised the concurrent powers of the President and Governor in line with the Constitution.
The next important milestone in the development of law on this issue came in the year 1969. The Law Commission of India was tasked to review the entirety of the Code and recommend comprehensive changes to the law of criminal procedure. This took shape in the form of the 41st Law Commission Report published in September 1969. This report examined Sections 401 and 402 of the Code. It expressly noted how the statutory powers of the Government were ancillary to the Constitutional powers (Refer Page 248, Para 29.1). Interestingly, it also opined that it would be legally impermissible for the Code to be inconsistent with the Constitution (Refer Page 249, Para 29.4). However despite these findings, they expressed a concern with the State Government’s power to remit, commute and suspend sentences. It was felt that certain offences significantly affected the interest of the Central Government (offences involving the employees and property of the Central Government and offences investigated by the CBI). If a free hand was given to the State Government to exercise powers in respect of such offences, it would result in “difficulties of administration” for the Central Government, according to the Report (Refer Page 252, Para 29.13).
This formed the basis for them to recommend the insertion of a draft Section 402B in the Code. This Section would require the State Government to consult the Central Government if it wished to remit, commute or suspend sentences in the offences described above. This recommendation was accepted by the Parliament when the Code was replaced with new CrPC enacted in the year 1973 in the form of Section 435 of the CrPC.
Having a brief idea of the context of this provision, we may now examine the relationship between the CrPC and the Constitution.
Relationship Between the CrPC and the Constitution
The Constitution’s passive recognition of the statutory power of the Governor may have one of two implications-
- The Statutory Power is merely a formal recognition of the power of a Constitutional authority. It stands on a different footing from the Sovereign power of the Executive Head. As a consequence, it does not dilute or affect the Constitutional powers of the Governor in any manner. Any statutory provision that would be inconsistent with the Constitution would be void.
- The Constitutional power is an expression of the Prerogative power of the Executive. Finding its origin in English Common Law, Article 72 and 161 may still be controlled and subject to legislative provisions that may be made to this effect. (This was the reading adopted by the majority in Nanavati)
The first of these two readings would result in the statutory powers of the Governor being completely redundant. If it would be open to the Governor to exercise the exact same powers to remit, commute or suspend sentences in its Constitutional capacity. Any restrictions or mandatory procedures imposed in the statute (such as Section 435, CrPC) may be bypassed. Despite such redundancy, reading “A” would still be a more suitable reading of the law.
This is because, while it is correct that historically, the power of remission, commutation and suspension of sentences lies with the Executive Head, and that these are Prerogative powers that identify the source of authority from English Common Law – however, these conventions have been crystallised in the form of express Constitutional provisions. There are various other examples within the Constitution where principles of common law find express mention. For instance, Article 129 of the Constitutions declares the Supreme Court as a Court of Record. The powers of a Court of Record in English Common Law would include the power to punish for contempt of itself. Despite this, the framers chose to expressly also recognise the Supreme Courts power to punish for contempt in Article 129.
The consequence of this express recognition of common law norms is that such principles get the status of Constitutional law. It would follow that such principles/law are granted the protection of the highest law of the land which could only be altered by a Constitutional amendment. Therefore, Articles 72 and 161 are by themselves sources of power for the President/Governor to exercise power. It would not be correct to state that they are a reflection of the Prerogative powers which find their authority outside the Constitution.
Secondly, Article 245 of the Constitution confers power on the Legislature to make laws. The provision begins with a subject clause stating, “Subject to the provisions of this Constitution…”. This makes it abundantly clear that any ordinary law cannot be in contravention of any Constitutional provision. Further, there is nothing in the context of Articles 72 or 161 that would suggest that this straightforward interpretation of Article 245 should not be followed in reading them.
Thirdly. the language of Articles 72 and 161 marks a clear departure from their predecessor in the form of Section 295 of the Government of India Act, 1935. The regime before the Constitution in express terms gave deference to the statutory regime of the Code, which dictated the extent of powers exercisable by the Governor-General. This position no longer stands after independence, where the prerogative power has been given Constitutional status. If ordinary legislation may be allowed to control Articles 72 and 161, it would result in the said provisions themselves becoming redundant.
As mentioned earlier, Article 74/163 requires the President/Governor to exercise their functions only on the binding aid and advice of the Council of Ministers. The powers under Article 72/161 being one such function, would also have to be performed only on the aid and advice of the Council.
If reading “B” of the law is adopted and ordinary laws could independently guide the power of the President/Governor, it may not be necessary to act on the aid and advice of the Council of Ministers. The statutory framework under which the President/Governor would function, would then allow them to act in their personal discretion, free from their Constitutional obligations. This would be in clear violation of the mandate of Articles 74 and 163 of the Constitution which are a reflection of the principles of Executive accountability. The violation of these provisions in this manner would be contrary to the role of the President/Governor envisaged by the framers as nominal Executive Heads of State.
For these reasons, the decision of the Supreme Court in Nanavati is incorrect. The passive recognition of the Governors statutory powers in Article 72(1)(c) is only indicative of a parallel legal framework within which the Governor may operate. It cannot be construed to mean that it would be open to the Legislature to dilute and control Articles 72 and 161 by an ordinary legislation. Indeed, at the time of commencement of the Constitution, the Parliament made efforts to ensure that no provisions in the Code conflicted with the Constitution. To this effect, Section 402A recognising concurrent powers of the President and Governor to remit, commute or suspend sentences of death was introduced.
Despite the view of the Court in Nanavati, the Supreme Court has subsequently moved away from this approach. In the case of Maru Ram vs Union of India, a Constitution Bench considered the validity of Section 433A of the CrPC, 1973. This provision disallowed the President/Governor to exercise powers under Section 432 and 433 (for convicts sentenced to a certain class of sentences) if the convict had not served at least fourteen years of imprisonment. The Court held that Section 433A would not be attracted when the Governor exercised powers under Article 161. Both provisions stood on a different footing and it would not be open for a statute to control the Executive Power conferred by the Constitution in absolute and unqualified terms.
This position was reiterated by the Supreme Court in the case of State of Punjab vs Joginder Singh, which involved the interpretation of paragraphs 516-B and 631 of the Manual for the Superintendence and Management of Jails in Punjab. These provisions required Jail Superintendents to submit applications for remission to State Governments after the convict served fourteen years of imprisonment. In the course of interpretation, the Court enquired into the relationship between the said Rules and Section 433A of the CrPC. By relying on Maru Ram, it too came to the conclusion that no legislative scheme (in this case, the Prison Manual) may be inconsistent with the Governors powers under Article 161.
Accordingly, Section 435 of the CrPC too cannot be construed such that it controls the absolute powers of the Governor under Article 161. The Governor would not be required to concur (or even consult) the Central Government for the purposes of issuing any pardons in furtherance of Article 161. In this light, the Supreme Court was correct to not consider the involvement of any provisions of the CrPC in the case of A.G Perarivalan.