From UPSC perspective, the following things are important :
Prelims level: Article 72 and Article 161
Mains level: Paper 2- Judicial scrutiny of decisions by functionaries
The inaction by the Governor of Tamil Nadu on advice to free the convict has raised the possibility of judicial intervention due to undue delay.
Inaction by Governor on advice
- The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon by one of the seven prisoners convicted in the Rajiv Gandhi assassination case.
- In September 2018, the Supreme Court (SC) had observed, while hearing a connected writ petition, that the Governor should take a decision
- The inaction by the Governor now has given rise to constitutional fault lines within the Executive arm of the government.
Past judgements on pardoning power
- In Maru Ram v. Union of India (1981) Ā Supreme Court held that the pardoning power āunder Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.ā
- The majority judgment had said that the āadvice of the appropriate Government binds the Head of the Stateā.
- Therefore, a Governor is neither expected, nor is empowered, to test the constitutionality of the order or resolution presented to her.
Issue of delay in decision of mercy petition
- Recently, the Supreme Court, had examined the inordinate delay by the President and the Governor ā in taking decisions on mercy petitions.
- The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of āpresumption of dehumanising effect of such delayā.
- The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner ātill his last breathā.
Judicial scrutiny of the actions of Speakers
- It was hitherto believed that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a āwrit of mandamusā.
- In the recent case of Keisham Meghachandra Singh v. Honāble Speaker (2020),Ā the Supreme Court was asked to examine the Speakerās inaction with regard to disqualification proceedings.
- However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007),Ā had confirmed its view that the āfailure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedureā
- Consequently, breaking years of convention, the SC set the time period of four weeks to decide the disqualification petition.
- By doing so, the Supreme Court has indicated that it would not be precluded from issuing directions in aid of a constitutional authority āarriving at a prompt decisionā.
Consider the question “The undue delays and inactions by the constitutional functionaries threaten to widen the constitutional faultlines among the Executives. Comment.”
Conclusion
Instead of relying on the judicial intervention in the event of delays, it would be better to have a set time limit for arriving at decision by the constitutional judiciary.
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