Parliament – Sessions, Procedures, Motions, Committees etc

Governor’s inaction and judicial scrutiny

Note4Students

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)  Supreme Court held that the pardoning power “under 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.
  • The majority judgment had said that the “advice of the appropriate Government binds the Head of the State”.
  • 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 — in taking decisions on mercy petitions.
  • The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of “presumption of dehumanising effect of such delay”.
  • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.

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 ‘writ of mandamus’.
  • In the recent case of Keisham Meghachandra Singh v. Hon’ble Speaker (2020), the Supreme Court was asked to examine the Speaker’s inaction with regard to disqualification proceedings.
  • However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007), had confirmed its view that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”
  • 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 “arriving at a prompt decision”.

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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