Approach to Writing Mains Answer on 18-11-2020

Topic : State Executive & Council of Ministers.

Qn. “ Do you think the Governor of a state has a discretion in exercising his clemency powers available under Art 161 of the Constitution of India? Bring out the relevant ruling of the Supreme Court in this regard “ (250 words)

Why this Question ?

The question has been framed in the background of the reluctance of the Governor of Tamil Nadu to exercise his clemency powers even after multiple resolutions passed in the Tamil Nadu Assembly demanding the release of the convicts in the former Prime Minister Rajiv Gandhi assassination case.

The first part of the question is a study into to the constitutional relationship between the nominated head of the executive in the state and the elected Council of Ministers who enjoy the popular mandate in the democracy.


The second part of the Question needs justification for the idea put forward in the first half of the answer by quoting relevant case laws to support the main idea in the answer.


Since it is a 250 word answer, an apt introduction to the question could be to the length of about 40-50 words.

The introduction can point out that we have adopted the parliamentary form of government at the state level. The Constitution in Article 163 provides for a Council of Ministers to aid and advise the Governor in the exercise of his functions.The issue of use of clemency powers provided to the Governor under Art 161 has come under limelight due to various instances in which the Governors of the states have not acted on the aid and advice of the Council of Ministers.


Art 161 provides the Governor with the power to grant different types of clemency for convicts punished under a state law. While it has not been explicitly mentioned that the Governor needs to act in accordance with the Council of Ministers, a harmonious reading of Art 163 and different provisions of the Constitution leads one to infer the binding nature of the advice tendered by the elected Council of Ministers.

The landmark judgment in the Maru Ram vs Union of India had clearly established that the actions of the Governor in exercising his clemency powers are not of his own but rather the advice of the council of ministers.

Similarly Governors have often taken advantage of non-interference of the Judiciary in matters of non adherence to the advice of the Council of Ministers. Even this had come to change after the Keisham Meghachandra Singh case in which the SC had issued directions to the speaker to perform his constitutional duties.

This had opened up the avenues for the SC to issue necessary directions to the Governor to perform his constitutional duties under Art 161 of the Constitution by heeding to the advice of the Council of Ministers.

The SC in the Shatrughan chouhan vs Union of India judgment had made it clear that inordinate delay in disposal of mercy petitions would amount to violation of the Fundamental Right to Life guaranteed under Art 21 of the Constitution.

By a combined understanding of the above two judgments, such delays on the part of the Governor in deciding upon the mercy petitions only makes the Governor vulnerable to be directed by the SC (by virtue of its role as the protector of fundamental rights) to act on the advice of the Council of Ministers so as to speedily decide on the mercy petitions.


It is worth pointing out that certain high offices such as the office of the Governor of the state do need to certain discretion in their functions.

However it should be used to uphold the principles of the Constitution and not to prevail over the ‘aid and advice’ rendered by the elected Council of Ministers in deciding upon mercy petitions of convicts languishing in prisons for want of speedy decision.