DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
Recent decisions by constitutional heads – rejection of mercy petitions in the Rajiv Gandhi assassination case by the President and the Gujarat governor’s decision to appoint Lokayukta – have caused debates both on constitutional and political lines.
The Constitution vests sovereign power in the President and governors. Governance in the Centre and states are carried out in their name. But they do not have unbridled power to decide mercy petitions in exercise of exclusive powers conferred on them under Articles 72 and 161. They have to act in aid and advice of the council of ministers, both at the Union and state levels, as have been held conclusively by the SC. The SC had grudgingly agreed with Justice Oliver Wendel Holmes, who had said, “Pardon is not a private act of grace from an individual happening to possess power. It is part of a constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”
So, the President by rejecting the mercy pleas has, on the aid and advice of the Union council of ministers, come to the conclusion that public welfare would not be served by reducing the punishments awarded to the convicts. The Constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction. But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
Now, it is in the process of examining whether there should be a time limit for deciding mercy petitions, which keep pending for years inflicting mental torture on condemned prisoners awaiting their day. The question of the President and governors, conferred with wide powers under the Constitution, acting in their own capacity without consulting the elected government came in for wide discussion in Shamsher Singh case [1975 SCR (1) 814].
A 7-judge constitution bench was amused by the ingenious arguments by a counsel supporting vesting of discretionary powers with President and governors to step around the SC’s consistent view that India has accepted the Cabinet form of government.
The counsel argued – wherever the Constitution has expressly vested powers in the President or the governors, they belong to them alone and cannot be handled on their behalf by ministers under the relevant rules of business. It is similar to the arguments justifying Gujarat governor Kamla Beniwal‘s decision to appoint Lokayukta without consulting the chief minister.
The SC had answered this question by saying, “How ambitious and subversive such an interpretation can be to parliamentary (and popular) authority unfolds itself when we survey the wide range of vital powers so enunciated in the Constitution. Indeed, a whole host of such Articles exist in the Constitution, most of them very vital for the daily running of the administration and embracing executive, emergency and legislative powers either of a routine or momentous nature.”Discussing the governors, the court said they had “power to grant pardon or to remit sentence, the power to make appointments including of the chief minister, the advocate general, district judges, members of the public service commission”.
It listed such kind of power vested in the President – supreme commander of the armed forces, appointment of judges of the SC and HCs, power to dismiss a state government under Article 356 and an entire army of public servants who continue in service at the pleasure of the President. If President and governors acted on their own, then parliamentary democracy “will become a dope and national elections a numerical exercise in expensive futility”, the court had warned.
The 7-judge bench said if this was true of Indian Constitution and the system of governance, then “we will be compelled to hold that there are two parallel authorities exercising powers of governance of country, as in the dyarchy days, except Whitehall is substituted by Rashtrapati Bhawan and Raj Bhawan. The Cabinet will shrink in political and administrative authority”.
It said such a distortion “would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that governors are but appointed functionaries and the President himself elected on a limited indirect basis”.
Irrespective of who gets appointed and who gets pardon, let politicians not introduce politics into the constitutional scheme, the thread that keeps the country united. In case of Gujarat, there is a difference- the statute clearly provided that Lokayukta will be appointed by the governor in consultation with the chief justice of the HC. The Modi government can amend the statute, which on Shamsher Singh judgment logic, appears untenable. But as long as it is there, why does the BJP want the Modi government to have primacy in Lokayukta appointment but grandstands for an independent process for Lokpal?