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Report No. 262

E. Subjectivity in Exercise of Power under Article 72 by the President

6.5.1 It is to be noted that in exercise of power under Articles 72 and 161, the President or the Governor, as the case may be, is to be guided and directed by the "aid and advice" rendered by the Council of Ministers under Articles 74 and 163. The Supreme Court has said so in categorical terms in Maru Ram v. Union of India, (1981) 1 SCC 107 in the following paragraph:

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 it or not, can advice 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 the President or the Governor to take independent decision or direct release or refuse release of anyone of their own choice.

It is fundamental to the Westminster 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 euphemisms 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 case [Shamsher Singh v. State of Punjab, (1975) 1 SCR 814 : (1974) 2 SCC 831 : 1974 SCC (L&S) 550]. So, we agree, even without reference to Article 367(1) and Sections 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 judgement 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-à-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 is an abbreviation for the Central Government. Maru Ram v. Union of India, (1981) 1 SCC 107, at para 61. (Emphasis supplied)

6.5.2 While the President of India in considering a mercy petition is constitutionally obligated to not deviate from the advice rendered by the Council of Ministers, there have been occasions where the President has refrained from taking any decision altogether on the said mercy petition, thus, keeping the matter pending. In the table below, the record of mercy petitions disposed by various Presidents till date is discussed:716



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