Governor’s discretion


  • The discretionary powers of the Governor are once again at the centre of a fresh controversy to decide on the remission of seven convicts in the Rajiv Gandhi assassination case. A Supreme Court Bench led by Justice Ranjan Gogoi, while disposing a writ petition, recorded that the petitioner had filed an application before the TN Governor.
  • Following this, the TN Cabinet adopted a resolution recommending that the Governor release the seven convicts under Article 161 of the Constitution.

Discretion under the Constitution.

  • Article 161 of the Constitution provides the Governor with the power to “remit or commute the sentence of any prisoner”.
  • The Governor’s decision will be subject to judicial review by the constitutional courts.
  • Nevertheless, the immediate question is whether there is an independent, discretionary power vested with the Governor with regard to Articles 161 and 163 of the Constitution.

Nabam Rebia and Bamang Felix v. Deputy Speaker (2016)

  • In the view of the Supreme Court, speaking through a five-judge Bench in Nabam Rebia and Bamang Felix v. Deputy Speaker (2016), the discretionary power of the Governor is extremely limited and entirely amenable to judicial review.
  • Time and again, the courts have spoken out against the Governor acting in the capacity of an “all-pervading super-constitutional authority”.
  • Even when the exercise of discretion is concerned, a seven-judge Bench of the apex court in Samsher Singh v. State of Punjab (1974) had held that the Governor may do so only in harmony with his Council of Ministers.
  • To do so, the Governor is precluded from taking a stand against the wishes of the Council of Ministers.

Cause of Concerns:

  • The area being traversed in this case is alien to our Constitution, not having envisaged a situation where the Governor exercises his power under Article 161 against the express recommendation of the Council of Ministers.
  • Such a decision will result in a tragic rejection of the Constitution and its founding principles such as the federal structure, Cabinet responsibility and accountable governance.
  • This may also be interpreted as the Governor having lost faith in the State government with regard to the performance of its executive functions.
  • Either way, to stay true to the spirit of the Constitution, the Governor should desist from conferring discretionary powers to his office where there are none.


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