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Saturday, March 21, 2020

Tamilnadu Governor's decision on Seven Tamils release is contempt of court! K. VENKATRAMAN General Secretary, Thamizh Thesiya Periyakkam (Tamil National Movement)



Tamilnadu Governor's decision on
Seven Tamils release is contempt of court!

K. VENKATRAMAN
General Secretary,
Thamizh Thesiya Periyakkam
(Tamil National Movement)


Yesterday on 20.03.2020, on the floor of the Tamilnadu Legislative Assembly MLA U. Thaniarasu questioned the status of the release of seven convicts in Rajiv Gandhi Assassination case.
Replying to the query, Tamilnadu Law Minister C.Ve. Shanmugam said that, in the supreme court case filed by Mr. Perarivalan one of the seven convicts in the Rajiv Gandhi’s case, the court asked the State government to check the status of the recommendation of the state government sent to the governor on September 8 – 2018 recommending release of all the seven convicts.
Based on the direction of the Supreme Court the State Government sent a letter to the Governor’s office seeking explanation on the steps taken by him on the issue.
The Governor’s office replied that, as the Multi Disciplinary Monitoring Agency (MDMA) is probing the conspiracy in the Rajiv Gandhi assassination case. Any action on the issue would be taken only at the agency submits its report to the Union Home Ministry.
This decision taken by the Governor of Tamilnadu Banwarilal Purohit is clearly illegal. It is against the Article 161 of the Indian constitution.
The State Government of Tamilnadu, sent its advice to the governor to release all the seven life convicts who are languishing in the jail for the last 28 years.
This Proposal sent by the State Cabinet was under the power of the Governor under Article 161.
Under Article 161, it is the bounded duty of the State Governor to put his signature endorsing the decision of the Cabinet.
Under Article 163 of the Constitution, the State Governor should act as per the advice of the State Government.
The Discretionary power of the Governor is very very limited. This question was dealt with by the Five member consititution bench led by Jagadish Singh Khekar in Nabam Rebia on 13.07.2016 (CIVIL APPEAL NOS. 6203-6204 OF 2016).
Nabam Rebia Judgement in its para 4.2.14 and 4.2.15 clearly states as follows.
“In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of his Council of Ministers. There is, however, an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution" means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution".
4.2.15 Thus, the scope of discretionary powers as provided in the exception in clause (1) and in clause (2) of Article 163 has been limited by the clear language of the two clauses. It is an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head of the State should not be enlarged at the cost of the real executive, viz. the Council of Ministers. The scope of discretionary powers has to be strictly construed, effectively dispelling the apprehension, if any, that the area for the exercise of discretion covers all or any of the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. The area for the exercise of his discretion is limited. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.” The important observations in the Justice M.M. Punchhi Commission report, with reference to Article 163(2), are contained in paragraph 4.3.03. Relevant extract of the same is reproduced below:
“Article 163(2) gives an impression that the Governor has a wide, undefined area of discretionary powers even outside situations an impression needs to be dispelled. The Commission is of the view that the scope of discretionary powers under Article 163(2) has to be narrowly construed, effectively dispelling the apprehension, if any, that the so-called discretionary powers extends to all the functions that the Governor is empowered under the Constitution. Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution.
This Article 163 is about the executive relationship between the State Cabinet and Governor. Under Article 161, Governor has no discretionary power of his own.
In this regard, one can refer Maruram vs Union of India (1981 SCC (1) 107). This judgment which was exhaustively quoted in various cases was authored by Justice VR. Krishna Iyer on behalf of Five member constitution bench.
The Para 21 of the order clarifies the constitutional position very clearly as follows.
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 it or not, can advise and not 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 withhold the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligation 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 the President 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 Westminster system that the Cabinet rules and the Queen reigns. The President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. So, even without reference to Article 367(1) and ss. 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 act 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 and 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 is an abbreviation for the Central Government. [1239 C-H, 1240A-B] Shamsher Singh & Anr, v. State of Punjab, [1975] 1 S.C.R. 814, applied.
The Tamilnadu Governor Banwarilal Purohit, out of his animosity towards Tamils, is acting against the constitution. To divert the attention and deny his constitutional duty, he is mentioning about the report of the Multi Disciplinary Monitoring Agency which is enquiring the conspiracy in the Rajiv Gandhi case. This report has nothing to do with the decision of the Cabinet under the Article 161.
If at all the agency report was pertinent to the case, the judiciary right from TADA court upto Supreme Court could not have conducted and concluded the case. Citing the Report of the Multi Disciplinary Monitoring Agency, by the Governor in itself is contempt of court.
Legally and morally the report of the MDMA cannot make any influence on the decision of the cabinet under Article 161.
The Letter of the Governor is not only unconstitutional, but an insult to the Government of Tamilnadu and the Tamil people at large.
So, on behalf of Thamizh Thesiya Periyakkam (Tamil National Movement) I urge upon the State Government of Tamilnadu to send a letter to the Governor stating his unconstitutional position taken in this regard to prevail upon him for the early release of Perarivalan, Murugan, Santhan, Nalini, Jeyakumar, Robertpayes, Ravichandran as early as possible.
K. VENKATRAMAN
General Secretary,
Thamizh Thesiya Periyakkam (Tamil National Movement)


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