Supreme Court Senior Advocate Dr Rajeev Dhawan has addressed the constitutional and legal issues raised by the Governor Rajasthan

In “Further comments on Governor’s pardon” dated July 6, 2011, Supreme Court Senior Advocate Dr Rajeev Dhawan addresses the constitutional and legal issues raised by the Governor Rajasthan, based on the following concerns:

(a) The Governor lacks jurisdiction concerning ‘aliens’ because that falls under the executive power of the Union.

(b) The Governor needs to act on advice of the Council of Ministers.

(c) Whether Dr Chishty can pursue a judicial remedy and seek pardon at the same time?

(d) Whether Dr Chishty is really ill to the extent of a serious heart condition or paralysis?

(e) Whether the victim’s wife’s representation of 23 June 2011 resists the grant of pardon because of its impact on judicial proceedings?

Dr Dawan cites precedents to support his contention that legally, “The Governor is bound by the advice of the Council of Ministers” (Maru Ram (1981) 1 SCC 201 at pr. 61 p. 147; Kehar Singh (1989) 1 SCC 204 pr. 7 p. 21).

“Whether the CM has overridden the views of his cabinet is, in this case, technical. But this can easily be overcome, by affirmation by the Cabinet with retrospective effect on the basis that the implied approval of the Cabinet was present.

“What is important is that the Governor can seek, queries but cannot reject the advice of the Cabinet.”

Dr Dawan notes: “There is no impediment to Dr Chishty pursuing ‘judicial’ and ‘pardon’ remedies at the same time” (Nanavati’s case (1961) 1 SCR 497 it is observed at p. 529)

Regarding the federal question, Dr Dawan notes that Article 161 read with article 162, extends the Governor’s pardon power to “any matter relating to a matter to which the executive power of the Union extends” (article 161).

“In turn the executive power extends to all matters in the State and concurrent list (H.S. Dhillon’s (1971) 2 SCC 770).”

Criminal offences in relation to which pardon is being considered fall under the legislative head of criminal law and criminal procedure, states the legal expert, supporting his contention with various citations.

Dr Dawan also cites Section 435 outlining the duty of the State government to consult the Union government in certain cases and stresses that “the jurisdictional issue pertains to certain offences and certain situations under the control of the Union. All other matters are within the domain of the State government.”

“There is no doubt that the power to deal with aliens vests in the Union Government (List I, E-17). But a harmonious interpretation would suggest that:

(a) The power of pardon falls under List III E-1 and 2

(b) The power to deal with aliens rests with the Union.

“Nothing done by the Governor by way of pardon trenches on the power of the Union to deal with Dr Chishty pursuant to its power to deal with aliens and foreigners.”

In Dr Dawan’s considered opinion, “After Dr Chishty has been pardoned, he will only have had his offence or sentenced reprieved. His status as a foreigner and alien will remain unchanged. In that capacity, the Union will still have jurisdiction to deal with him under the Foreigners Act 1948 or deport him.”

Dr Dawan adds: “The fact that incorrect information was given in the mercy petition is only a factor. The Governor is not sitting as a judge to dismiss cases under the ‘unclean’ hands principle. Desperate people in jail do suffer exaggerated impulses. This has to be placed in context.”

In conclusion Dr Dawan notes:

(i) The Governor is bound by the advice of the cabinet (not just the Chief Minister). This can be shown even at this stage.

(ii) Judicial remedies and gubernatorial remedies can be pursued at the same time.

(iii) There is no federal disempowerment – in that even after the pardon the status of Dr. Chishty as an alien or foreigner will remain unchanged.

(iv) The Governor’s concerns on issues of fact need to be addressed. Failure to do so would invite judicial review.

(v) There is nothing to prevent the Cabinet from advising the Governor that even in the light of revised facts, Dr. Chishty deserves a pardon.”

— Beena Sarwar