Earlier this year, a constitutional provision returned to the headlines after a brief hiatus. Article 356 was invoked and President’s Rule imposed in the states of Arunachal Pradesh and Uttarakhand. After prolonged political drama, the judges of the Supreme Court and the Uttarakhand High Court struck down these proclamations.
As the situations developed in parallel, it became clear that the Governors of the states played key roles in the use of this constitutional provision as a weapon of political war. This was also evident from a bare reading of the text of Article 356.
What was the constitutional design behind vesting the Governor with these powers? Why did the judiciary not interfere, as Article 356 was repeatedly misused for forty years? What motivated the judges of the Supreme Court and the Uttarakhand High Court to strike the proclamations down?
To answer these questions, we turned to senior advocate and Times Now regular Sanjay Hegde and Alok Prasanna Kumar, the Senior Resident Fellow at the Vidhi Centre for Legal Policy. As they explain judgments of the Supreme Court and narrate tales of political intrigue, you will realise that the history of Article 356 is the history of Centre-State relations in India.
The President of India exercises mercy powers under Article 72 of the Constitution of India and the governors do it under Article 161. Historically seen as private acts of grace, clemency powers are now constitutionally guaranteed rights and consequently, must be exercised with a great degree of responsibility.
Does any relief remain after the President or a governor exercises these powers? Or are all remedies exhausted? The Supreme Court of India has in several decisions analysed these questions and answered that the courts have the power to judicially review the exercise of mercy powers but that this power is extremely limited. In exercise of their powers of judicial review, the courts do not sit in appeal over the decisions of the President or governors but can only examine the manner and materials relied upon to reach the conclusion.
In Shatrughan Chauhan v. Union of India and Others,the Supreme Court considered and consolidated much of the jurisprudence on the judicial review of mercy powers in India in relation to prisoners on death row. The Court held that the exercise of powers under Articles 72 and 161 are essentially executive actions and therefore amendable to judicial review. It held that while the decision of the President or a governoris per se beyond judicial scrutiny, what can be reviewed is the material that was relied on to arrive at the conclusion. The scope of the judicial review of decisions taken by high constitutional functionaries has to be balanced with the right of prisoners to seek executive clemency.
TheLaw Commission of India in its 262nd Reporthas listed, after an analysis of various judgments of the Supreme Court, the various circumstances in which the judicial review of the exercise of mercy powers is permissible. This includes (1) where the power is exercised without being advised by the government, (2) where there has been a transgression of jurisdiction by a governor or by the President, (3) where there is non-application of mind or mala fides, (4) where power has been exercised on political considerations, (5) where there is arbitrariness, and (6) where irrelevant considerations have been considered or where relevant material has been left out.
The file’s journey
To find out about what has been considered and what has been left out, it is necessary to track the movement of the mercy petition file. While procedures in individual cases may vary according to the law under which a person is convicted, The prisoner’s petition usually finds its way to the Home department of the concerned state. The state government then gives its advice to the Governor, who then decides the petition based on this recommendation. Thereafter, the file is sent to the Union Home Ministry which in turn sends its recommendations to the President of India and then the President herself takes a decision. Often, this involves a long chain of correspondence between various government agencies including prisons. Usually, with a change in government, the files are sent back by the President for consideration by the new government. While the Supreme Court has recommended that this entire process should be concluded within three months, in many cases, it has taken over a decade.
The objective is to present a full picture to the Governor and the President so that they may decide on the plea beyond the strictly judicial plane. But often, there are lapses in procedure or important materials are either accidentally or deliberately left out and irrelevant factors are considered.
Errors in exercise of mercy jurisdiction
For instance, in Epuru Sudhakar’s Case, the Supreme Court set aside a pardon granted by the Governor because extraneous circumstances, such as the convict “belonging to an upper caste” and “being a good Congress worker”, had been considered.
In Shankar Kisanrao Khade’s Case, the Supreme Court admitted that Dhananjoy Chatterjee’s case had been wrongly decided. He was hanged in 2004 after the President rejected his mercy petition. The court had not considered the mitigating circumstances properly. Much emphasis was laid on the circumstances of the crime rather than the circumstances of the criminal. In its 262nd Report, the Law Commission also said that the Governor rejected Dhananjoy Chatterjee’s petition without taking into consideration the mitigating circumstances.
The Law Commission report also discussed Bandu Baburao Tidke’s case, where the President commuted the death sentence to life imprisonment in 2012 when the prisoner had actually died in jail in 2007. This incident demonstrated the complete non-application of mind and the failure to consider or even call for records from the prison where the prisoner was lodged in, as they would have shown that the prisoner was already dead.
Is there a right to judicial review of a decision made in a second mercy petition?
Most recently, Yakub Memon’s case seemed to change the jurisprudence to some extent. It may even be seen as having curtailed the judicial review of mercy petitions. Initially, Yakub Memon’s brother had filed a mercy petition and it was rejected in 2014. After a review petition was dismissed in 2015, a warrant was issued fixing a date for execution. After that, a mercy petition was filed before the Governor and thereafter before the President. The President rejected the mercy petition around 10 pm on the night before the date on which the execution had been scheduled for 7 a.m. While a stay was sought on the execution so that he could seek the judicial review of the rejection of his mercy petition, the Supreme Court refused to stay it. It held that since the rejection of the first mercy petition in April 2014 had not been challenged, the prisoner could not avail of the period of 14 days after the rejection of his second mercy petition. In effect, this deprived him of the opportunity for the judicial review of the rejection of his mercy petition. The decision seems to be at odds with the decision in Shatrughan Chauhan’s Case, which was decided by a bench of the same strength. Therefore, the question of the maintainability of a second mercy petition and the right to the judicial review of a decision made in a second mercy petition needs to be adjudicated by a larger bench.
The problem of secrecy
There have also been cases where the President of India has conditionally commuted death sentences. Sometimes, these conditions may be excessively harsh and would amount to a punishment greater than what the courts have the power to prescribe. Previously, several Presidents would record specific reasons on file for taking the decision to accept or reject the mercy petition. Of late however, the Presidents only signs off on the government’s recommendation and no reasoning is provided. While it is not open to question the final decision, it is important to ensure that the decisions taken by the highest of constitutional authorities are not whimsical, are based on relevant material, and are reasoned decisions. In the constitutional set-up, it should be noted at this point that governors and the President act only on the advice of the government and cannot act independently.
Effective checks on executive failures
In view of executive failures, some of which have been illustrated above, we can see the need for stringent judicial review in cases where the death penalty has been imposed. While the judiciary cannot provide a foolproof solution, it acts as another check where the consequences of the punishment are final and irreversible. It is also necessary that the judiciary, in reviewing the executive action, fix responsibility on erring officials in the executive so that there is accountability for deliberate or negligent omissions in placing materials before a governor or the President. The executive should also lay down norms for decisions in mercy petitions and not only in capital punishment cases. Currently, guidelines only exist on mercy petitions in death sentence cases. These guidelines however, do not take into account recent judicial decisions. After all, under the law laid down by the Supreme Court in Kehar Singh’s case, it is not for the judiciary to law down guidelines for the exercise of mercy powers. The judiciary can only step in to ensure that the powers are “exercised in the aid of justice and not in defiance of it.”
(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The Clinic represented was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)
What do the President of India, the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and judges of the Supreme Court of India have in common? They are all high constitutional functionaries at the central level of the government. They can only be removed from office by impeachment.
Only the President however, is elected. The rest of them are appointed by the President acting on the aid and advice of the Council of Ministers. The President is (indirectly) elected by a collegium consisting of the members of the Parliament and the members of the State Legislatures. Indeed, among elected representatives, the President’s is the only tenure that is constitutionally guaranteed, no matter what happens in the Parliament.
Also unlike the President, the rest have clearly defined constitutional compartments within which they can function. They are not bound by the Cabinet and are truly independent high constitutional functionaries. This has been demonstrated by the people who have held these offices in past.
So the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and Supreme Court judges are not elected to office and can only be removed by the tedious process of impeachment. Why then has the elected President been denied a clear constitutional compartment in which he can act freely?
Preserve. Protect. Defend.
Among the Cabinet, the Parliament, and the President, only the President is sworn to preserve, protect, and defend the Constitution. Like a Supreme Court judge, a Member of Parliament swears to bear true faith and allegiance to the Constitution. In addition to taking an M.P.’s oath, a Cabinet minister takes an oath of secrecy. It stands to reason then that the Cabinet, which has sworn to work within the four corners of the Constitution, would never tender any advice to the President, the acceptance of which will place the President in violation of the Presidential oath. If such advice were tendered however, would the President have the constitutional authority to reject it outright and discharge the duties of the high constitutional office in contradiction to the advice tendered by the Cabinet? Further, who decides whether the advice tendered would force the President to act in violation of the Presidential oath?
A reversal of roles
B.R. Ambedkar in fact, said that it would be permissible on occasion for the Cabinet and Presidential roles to be reversed. The text of the originally adopted “Presidential Aid and Advice Clause” (Article 74) said, “There shall be a Council of Minsters with the Prime Minister at the head to aid and advice the President.” While this provision was being drafted, Dr. Rajendra Prasad asked Dr. Ambedkar, “Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers?” There was in fact no provision in the Draft Constitution to this effect and Dr. Ambedkar said, “…there is a provision in the Instruments of Instructions.” The Instruments of Instructions were removed from the Draft Constitution when it was adopted. But speaking on the text of the originally enacted Article 74, Dr. Ambedkar said, “It is the Prime Minister’s business, with the support of Ministers, to rule the country and the President may be permitted now and then to aid and advice the Council of Ministers.” Perhaps Dr. Ambedkar had the foresight to predict the impossible situation the President would find himself in where accepting the Cabinet’s advice would force him to act in violation of his oath.
Governor’s power to overrule the State Cabinet
In fact Justice V. R. Krishna Iyer, in his concurrence in Shamsher Singh v. Punjab, (1974) 2 SCC 831, a seven-judge bench decision, cited the views of Dr. Ambedkar to support his conclusion that, “…the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.” This view was later used to support the conclusions in M.P. Special Police Establishment.
In M. P. Special Police Establishment, (2004) 8 SCC 788, a unanimous five-judge bench of the Supreme Court held that in exceptional circumstances, the Governor of a State, whose office is considered structurally equivalent to that of the President of India, would have the constitutional authority to act in his personal discretion. Such a situation would arise when the State Cabinet is not in a position to tender unbiased or impartial advice to the Governor. Clearly, the Supreme Court was also not oblivious to a situation where acceptance of the State Cabinet’s advice would place the Governor in violation of the Gubernatorial oath, which incidentally also is, to preserve, protect, and defend the Constitution. When the Governor granted the sanction for prosecution of the members of the Cabinet, which was denied by the Cabinet in the face of sufficient evidence, the Supreme Court upheld the Governor’s action as constitutionally valid and rejected the argument that the Governor could not have overruled the State Cabinet. The Court however, cautioned that this should be done only in exceptional circumstances.
Note here that the Governor is the other high constitutional functionary that is not elected. The Governor is appointed by the President and serves at his pleasure. Which begs the question once again — how is it possible that a non-elected high constitutional functionary, the head of a State of the Indian Union, has been granted constitutional authority to, in rare circumstances, overrule the State Cabinet, but the office of the President, who is the head of the Indian Union itself, has been denied similar constitutional authority?
In Rao v. Gandhi, (1971) 2 SCC 63, the Supreme Court, while interpreting the originally enacted Article 74, held that the President is bound by the advice of the Union Cabinet. Later by the infamous Forty-Second Amendment, Article 74 was amended to read, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice.” One wonders what the point of amendment was when the Court had already interpreted Article 74 in favour of the Cabinet. Anyway, in Rao v. Gandhi, the unanimous five-judge bench was not faced with the question of what the President could do if in his opinion the advice tendered by the Cabinet is unconstitutional. Later, by the Forty-fourth Amendment, Article 74 was amended once again and a proviso was added which said, “Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.” This proviso admits the possibility of the Cabinet’s advice being rejected by the President but not if tendered again.
However, if the President rejects the Cabinet’s advice for the first time on the grounds of it being unconstitutional, merely tendering the same advice again would not cure the vice of unconstitutionality. For the purposes of this proviso therefore, it cannot be said that an advice has been constitutionally tendered at all. We must also note that both these amendments came after Kesavananda Bharti and can be judicially reviewed.
In any event, the President cannot and should not wait for the Supreme Court to give its opinion on the constitutionality of the Cabinet’s advice when in his opinion, accepting it would place him in violation of the constitutional duty to protect, preserve, and defend the Constitution. That truly would be an exceptional circumstance in which the President should be constitutionally allowed the authority to act according to his discretion. With all the legal assistance at his disposal, the President would be just as competent as a Supreme Court judge to decide whether accepting the Cabinet’s advice would force him to act in violation of the Presidential oath.
(Khagesh Gautham has an LL.M. from Columbia Law School and teaches constitutional law at the Jindal Global Law School.)