ORDER
1. In all these cases, the petitioners are seeking to issue a writ of declaration, declaring that the order of the first respondent/Governor, in rejecting the mercy petitions dated 17.10.1999 submitted by the petitioners as communicated in the communication dated 27.10.1999, issued by the forth respondent as ultra vires, the Constitution of India illegal and inoperative.
2. The petitioners were charge-sheeted and tried in the Rajiv Gandhi Assassination Case. The designated Court convicted them for offences under Section 302 read with Section 120-B of the Indian Penal Code and under TADA and other offences. The appeals preferred by the petitioners were dismissed by the Apex Court. Even the Review Applications ended in dismissal, as a result of which the date was fixed by the jail authorities for hanging the petitioners.
3. Thereafter, according to the petitioners, they have submitted the petitions dated 17.10.1999, claiming the mercy of the Governor of the State of Tamil Nadu with enclosures and annexures in support of their claim. Under the impugned proceedings the Deputy Secretary to Government, Home Department informed the petitioners that the Governor of Tamil Nadu who considered the mercy petitions submitted by the petitioners under Article 161 of the Constitution of India has rejected the same. This letter was sent to the Inspector generals of prisons with the request to inform the same to the petitioners accordingly. The Inspector General of prisons has also been requested to obtain the mercy petitions to be prepared by the petitioners to the President of India, under Article 72 of the Constitution of India and forward them to Government forthwith.
4. The Learned Additional Advocate General has taken notice on behalf of the respondents 2 to 5 and produced the file for perusal of this Court. Since the learned Additional Advocate General is appearing for respondents 2 to 5, this court felt that he could assist the court in appreciating the facts and law on the issue, and so no separate notice to the first respondent is necessary.
5. The main issue that has been raised in all these cases is that the decision arrived at by the 1st respondent/Governor to reject the petitioner's mercy petitions without even consulting the council of Ministers is unsustainable in law.
6. To decide the said issue, it is beneficial to extract Articles 72 and 161 of the Constitution of India, which run as follows:-
'72. Power of President to grant pardons. etc., and to suspend, remit or commute sentences in certain cases:- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-
(a) in all cases where the punishment or sentence is by a court martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a court martial.
(3) 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',
'161 Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases:- The Governor of a state shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends'.
7. Article 72 of the Constitution deals with the power of the President to grant pardons, reprieves, respites etc. Article 161 gives power to the Governor of a State for the said purpose. While considering the scope of judicial review to examine the order passed by the President under Article 72 of the Constitution of India, the Apex Court in Khear Singh v. Union of India, : 1989CriLJ941 , has held as follows:-
'11. In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Art.72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Marunam v. Union of India, : 1980CriLJ1440 . The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. In Special Reference No.1 of 1964 : : AIR1965SC745 Gajendragadkar, C.J., speaking for the majority of this court, observed:
'...........Whether or not there is distinct and rigid separation of powersunder the Indian Constitution, there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution........'.
This Court in fact proceeded in State of Rajasthan v. Union of India, : [1978]1SCR1 to hold:
'.......So long as a question arises whether an authority under theConstitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court, Indeed it would be its Constitutionalobligation to do so.....This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the Constitutional values and to enforce the Constitutional limitations. That is the essence of the Rule of Law.....I' and in Minerva Mills lit., v. Union of India, : [1981]1SCR206 , Bhagawati, J. said:
'.......the question arises as to which authority must decide what are thelimits on the power conferred upon each organ or instrumentally of the state and whether such limits are transgressed or exceeded.... The Constitution has,therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review..... it will be noted that the learned judge observed inS.P.Sampath Kumar v. Union of India, : (1987)ILLJ128SC that this was also the view of the majority judges in Minerva Mills Ltd. V. Union of India, : [1981]1SCR206 .
12. ..........
13. It seems to us that none of the submissions outlined above meets the case act up on behalf of the petitioner. We are concerned here with the question whether the President is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this court of it is open to him to consider the merits and decide whether he should grant relief under Art.72. We are not concerned with the merits of the decision taken by the President, nor do we see any conflict between the powers of the President and the finality attaching to the judicial record, a matter to which we have adverted earlier. Nor do we dispute that the power to pardon belong exclusively to the President and the Governor under the Constitution. There is also no question involved in this case of asking for the reasons for the President's order. And none of the cases cited for the respondents beginning with Mohinder Singh, : 1976CriLJ1755 advance the case of the respondents any further. The point is a simple one, and needs no elaborate exposition. We have already pointed out that the courts are the constitutional instrumentalities to go into the scope of Art.72 and no attempt is being made to analyse the exercise of the power under Art.72 on the merits. As regards Michael de Freitas, 1975 (3) WLR 388, that was a case from the Court of Appeal of Trinidad and Tobago, and in disposing it of the privy Council observed that the prerogativer of mercy lay solely in the discretion of the Sover-eign land it was not open to the condemned person or his legal repre-sentatives to ascertain the information desired by them from the Home Secretary dealing with the case. None of these observations deals with the point before to us, and therefore they need not detain us.
14. Upon the considerations to which we are adverted, it appear to us clear that the question as to the area of the President's Power under Art.72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.
15. The next question is whether the petitioner is entitled to an oral hearing from the President on his petition invoking the powers under Art.72. It seems to us that there is no right in the condemned person to insist on an oral hearing before the President. The proceeding before the President is of an executive character, and when the petitioner files his petition it is for him submit with it all the requisite information necessary for the disposal of the petition. He has no right to insist on presenting an oral argument. The manner of consideration of the petition lies within the discretion of the President and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. The President may consider sufficient the infor-mation furnished before him in the first instance or he may send for further material relevant in the issues which he considers pertinent, and he may. If he considers it will assist him in treating with the petition, give an oral hearing to the parties. The matter lies entirely within his discretion. As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this court in Maru Ram, : 1980CriLJ1440 .
16. Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under Art.72 this court should draw up asset of guidelines for regulating the exercise of the power. It seems to us that there is sufficient indication in the terms of Art.72 and in the history of the power enshrined in that provisions as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Art.72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.
8. Even while rejecting the submission to the effect that the court has no power to deal with the order of the Governor passed under Article 161 of the Constitution, the Apex Court in Swaran Singh v. State of U.P. : [1998]2SCR206 , the Apex Court has held as follows:-
' In view of the aforesaid settled legal position we cannot accept the rigid contention of the learned counsel for the third respondent that this court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, male fide or in absolute disregard of the finer canons of the constitutionaliam, the by- product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it'.
9. Before going into the scope of the abovesaid Articles, I am inclined to deal with the power of the Governor under the Constitution of India, as held by the Apex Court. The Governor enjoys nothing more and nothing less than the status of constitutional head in a cabinet type Government - a few exceptions and marginal reserves apart. Krishna Iyer, J. in his separatejudgment while concurring with the conclusion reached by the Constitution Bench,in the decision in Samsher Singh v. State of Punjab, : (1974)IILLJ465SC , has held as follows:-
'..138. The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence make for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encourage'. Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political Government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors, i.e., the Prime Minister and his colleagues. in short, the President, like the king, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. Political theorist are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role, he is not a rival center of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery.
139. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Article 74 has no discretionary powers; the latter too has none, save in the tiny strips covered by Articles 163(2), 371A(1)(b) and (d), 371A(2)(b) and (f), VI Schedule, para 9(2) (and VI Schedule, para 18(3), until omitted recently with effect from January 21, 1972. These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again a minimal area cen-tering round reports to be dispatched under Article 356 may not, in the nature of things, be amenable to Ministerial advice. The practice of sending periodical reports to the Union Government is a pre-constitu-tional one and it is doubtful if a Governor could or should report behind the back of his Minister. For a Centrally appointed constitutional func-tionary to keeps dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the Cabinet or to interface in the administration directly these are unconsti-tutional faux pas and run counter to parliamentary system. In all his constitutional 'functions' it is the Ministers who acts only in the narrow area specially marked out for discretionary exercise by the Constitution, he is untrammelled by the State Ministers acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions.
140. ......
141. The argument of the Counsel for the appellant is that wherever the President is invested with power - and the same holds good for the Governor - he is sovereign in his own right and has to exercise thefunctions personally and the orders of a proxy, even a Minister, cannot do duty for the exercise of Presidential power. There is logic in arguing that if, under Article 311, the President or Governor means President or Governor personally, under other similar articles the Rules of Business making over exercise of functions to Ministers and officers cannot be valid. 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. The power to grant pardon or to remit sentence (Article 161), the power to make appointments including of the Chief Minister (Article 164, the Advocate General (Article 165), the District Judges (Article 233), the Members of the Public Service Com-mission (Article 316) are of this category. Likewise, the power to prorogue either House of Legislature or to dissolve the Legislative Assemble (Article 174), the right to addresser send messages to the Houses of the Legislature (Article 175 and Article 16), the power to assent to bills or withhold such assent (Article 200), the power to make recommendations for demands of grants (Article 203(3)), and the duty to cause to be laid every year the annual budget (Article 202), the power to promulgate ordinances during receses of the Legislature (Article 213) also belong to this species of power. Again, the obligation to make available to the election Commission the requisite start for discharging the functions conferred by Article 324(1) on the Commission (Article 324(6)), the power to nominate a member of the Anglo-Indian commu-nity to the Assembly in certain situations 9 Article 333), the power to authorise the use of Hindi in the proceedings in the High Court (Article 348(2)), are illustrative of the functions of the Governor qua Governor'.
From the above said decision, the power to grant pardon and remit sentence under Article 161 of the Constitution of India will not come under the purview of discretionary powers given to the Governor. Articles 163(2), 371-A to 371-D and 371-F, VI Schedule to para 9 gives such powers.
10. While considering the fact whether the Governor takes the advice of the Council of Ministers, while exercising powers under Article 161 of the Constitution, the Apex Court in the decision in Maru Ram V. Union of India, : 1980CriLJ1440 , the Apex Court has held as follows:-
'61. Are we back to Square one? Has Parliament indulged in legislative futility with a formal victory but a real defeat? The answer is 'yes' and 'no'? Why 'yes'? because the President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers. The upshot is that the State Government, whether the Governor likes or not, can advise and act under Article 161 the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to thePresident or the Governor to take independent decision or direct release or refuse release of any one of their own choice, it is fundamental to the West Minister system that the cabinet rules and the Queen reigns being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional Suphemisms promptly acting on and only on the advice of the council of Ministers have in a narrow area of power. The subject is now beyond controversy, this Court having authoritatively laid down the law in Shamsher Singh's case, : (1974)IILLJ465SC . So, we agree, even without reference to Article 367(1) and Section 3(8) (b) and 3(60) (b) of the General Clauses Act, 1897, that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must at not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis-a-vis his cabinet is no higher than the President save in a narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President us an abbreviation for the Central Government'.
11. Following the abovesaid decision, the Apex Court in State of Punjab v. Joginder Singh and others, : 1990CriLJ1464 , again has insisted that the said requirement of getting advice of the Council of Ministers while exercising powers under Articles 72 and 161 of the Constitution of India, and has held as follows:-
'Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, Subject of course to section 433A, or where the clemency power under the Constitution is invoked. But while exercising the Constitutional power under Article 72/161, the President or the Governor as the case may be, must act on the advice of the Council, of Ministers. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Sections 432,433 and 433A of the Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules'.
12. In the decision in Berlin Joseph v. State, 1992 (2) Crimes 353, the Full Bench of the Kerala High Court, following the above said decision of the Apex Court, while dealing with the scope of Articles 72 and 181 of the Constitution of India, has held as follows:-
'Article 72 of the Constitution of India confers power on the President of India 'to suspend, remit or commute sentence' in all cases where punishment or sentence is for an offence against any law relating to a matter to which executive power of the Union extends, Article 161 contains similar power which Governor of a State can exercise in relation to a person convicted of any offence against law relating to a matter which the executive power of the State extends. A Constitution Bench of the Supreme Court has held in Maruram v. Union of India, : 1980CriLJ1440 , that power under Articles 72 and 181 ofthe constitution cannot be exercised by the President or Governor on their own but only on the advice of the appropriate Government. The said ratio has been followed by another constitution Bench of the Supreme Court in Kehar Singh v. Union of India, : 1989CriLJ941 . Thus, the position relating to Articles 72 and 161 of the Constitution, as interpreted by the Supreme Court, is that the appropriate executive Government can advice the Head of the State to exercise powers, thereunder and such advice is binding on him'.
13. The ratio laid down by the Full Bench decision of the Kerala High Court has been approved by the Apex Court in the decision in Maktool Singh v. State of Punjab, : 1999CriLJ1825 .
14. While deciding the question whether Maru Ram's case, : 1990CriLJ2241 is in conflict with Kehar Singh's case, : 1989CriLJ941 , on the question of necessity or guidelines to exercise under Articles 72 and 161 of the Constitution of India, the Apex Court in Ashok Kumar v. Union of India, : 1991CriLJ2483 , has field that the observations in Maru Ram's Case, : 1980CriLJ1440 was a mere recommendation and not a ratio decided in having a binding effect on the Constitution Bench which decided Kehar Singh's case, : 1989CriLJ941 and so the observations made by the Constitution bench in Kehar Singh's case, : 1989CriLJ941 does not upturn any ratio laid down in Maru Ram's Case, : 1980CriLJ1440 .
15. While dealing with the same, the Apex Court has dealt with the power of the President and the Governor under Articles 72 and 161 of the Constitution, and held as follows:-
'13. Under the Constitutional scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests. Similarly, the Governor is the Chief Executive of the Concerned State and in him vests the executive power of that state. Arts.72 and 161 confer the, clemency power of pardon. etc., on the President and the State Governors, respectively. Needless to say that this Constitutional power would override the statutory power contained in Ss.432 and 433 and the limitation of S.433A of the Code as well as the power conferred by Ss.54 and 55, I.P.C. No doubt, this power has to be exercised by the President/Governor on the advice of his Council of Ministers'.
16. Even while considering the exercise of powers under Article 163(1) of the Constitution of India by the Governor, the Apex Court, has held in the decision in U.P.P.S.C. v. Sureshchandra Tewari, : [1987]3SCR833 , asfollows:-
'7. We shall now deal with the second contention. It is no doubt true that Regulation 20 provide that appeal against the orders of the Commission shall be made to the Governor. But while exercising his powers under that regulation by the Governor has to act on the advice given by the State Government by virtue of Article 163(1) of the Constitution which reads thus:
163(1) There shall be a Council of Ministers with the Chief Minister, the head to aid and advise the Governor in the exercise of his functions, exceptinsofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
8. The function of hearing an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is not one of those functions which the Governor is required to exercise in his discretion under any of the provisions of the Constitution. The Governor has, therefore, to act on the advice of the State Government. This position has been settled by the decision of this Court in Samsher Singh v. State of Punjab, : (1974)IILLJ465SC (L & S) 550: 1974 (2) LLJ 465, Ray,C.J., speaking for himself, Palekar, Mathew, Chandrachud and Alagiriswami, JJ, has observed at page 836 thus: (SCC p. 849, SCC (L&S;) p.568, para 57):
For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all Matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.
9. The function of deciding an appeal against an order of punishment imposed in a disciplinary proceeding is an executive function. Hence, by acting in accordance with the advice tendered to him by the state Government, the Governor has not acted contrary to the provisions of the Regulations or of the Constitution. The appellate power exercised in the instant case in accordance with Article 166 of the Constitution. We do not, therefore, find any merit in the second contention too'.
From the abovesaid decisions, it is clear that before taking decision on the petition filed under Article 161 of the Constitution of India, the Governor should take the advice of the Council of Ministers.
17. Though the learned Additional Advocate General has agreed with this proposition of law, he has further submitted that when the Tamil Nadu Government Business Rules are in force, and if the procedures have been complied with in accordance with the said Business Rules, it should be constructed that the same amounts to strict compliance of the requirement of Article 161 of the Constitution. According to him, the schedule No.11 to the said Business Rules contemplates the cases which have to be brought before the Council of Ministers and the petitions filed under Article 161 of the Constitution of India are not the subject matter in the Schedule No.11 to he said Business Rules. On that basis and also referring to Rule 35(1)(a) and 35(1) (b) he has also submitted that the petitions filed by the petitioners with all materials have been forwarded by the Chief Minister, as instructed, who is also incharge of the Home Department. So the question of further getting advice from the Council of Ministers will not arise, especially when the Government of Tamil Nadu's Business Rules do not Contemplate such a procedure. This submission cannot be countenanced. Merely because such a procedure of consulting the Council of Ministers is not contemplated, it cannot be said that it is not necessary, when such an obligation is contemplated underthe Constitution and as held by the Apex Court in the abovesaid decisions. When the Governor cannot act on his own to decide the petitions filed under Article 161 of the Constitution, it cannot be said that seeking such advice is not necessary. The aid and advice is a constitutional restriction on the exercise of executive powers by the Governor. The governor can exercise powers and functions without the aid and advice of the Council of Ministers when the Governor is required by or under the Constitution to act in her discretion. It is well settled that the exercise of powers under Article 161 of the Constitution can not be categorized under the discretionary powers of the Governor.
18. Mere forwarding the papers as submitted by the learned Additional Advocate General, cannot be construed as giving advice. This view of mine is supported by the decision in S.R. Bommai v. Union of India : A Critique, : [1994]2SCR644 , in which it has been held as follows:-
'324. In our respectful opinion the above obligation cannot be evaded by seeking refuge under Article 74(2). The argument that the advice lendered to the President comprises material as well and, therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The material may be placed before the President to acquaint him - and if need be to satisfy him - that the advice being tendered to him is the proper one. But it cannot mean that such material by dint of being placed before the President in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing; in such a case that writing is the advice and is covered by the protection provided by Article 74(2). But it is difficult to appreciate how does the supporting material become part of advice. The respondents cannot say that whatever the President sees - or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the court. Article 74(2) must be interpreted and understood in the context of entire constitutional system. Undue emphasis and expansion of its parameters would engulf valuable constitutional guarantees. For these reasons, we find it difficult to agree with the reasoning in State of Rajasthan, : [1978]1SCR1 , on this score, insofar as it runs contrary to our holding.
19. In view of the fact that the procedure of getting advice from the Council of Ministers by the first respondent before passing the impugned order under Article 161 of the Constitution is not followed and also as decided in the above said cases by the Apex Court, the impugned order is not valid in law, and it cannot be sustained. Accordingly, the same is set aside. It is for the first respondent to pass a fresh order on the petitions of the petitioners, after getting advice of the Council of Ministers. With the above observations, these writ petitions are allowed accordingly. No costs. Consequently, W.M.P.Nos.25682 to 25685 of 1999 are closed.