The former Secretary-General of the Lok Sabha, P.D.T. Achary, has warned that the recent resolution passed by the Tamil Nadu Legislative Assembly seeking the President to commute the death sentence of three of Rajiv Gandhi's killers and a similar attempt made by the Jammu and Kashmir Assembly in favour of Parliament attack case convict Afzal Guru might result in “unintended consequences.”
Mr. Achary told The Hindu on Thursday that neither the State government has constitutionally-sanctioned powers in this regard nor can the Assembly perform that role.
“In other words, the Legislative Assembly of a State has no power to request the President to consider a mercy petition in a particular way,” he pointed out.
Commenting on the powers of the State legislatures to pass such resolutions seeking mercy for the convicts even after the President has rejected them, Mr. Achary said: “Passing a resolution by an Assembly seeking Presidential pardon for someone who did an act of terrorism is tantamount to saying ‘He is our terrorist, therefore, please spare him.' This message goes across the world.”
The steps taken by the two Assemblies had caused considerable consternation in the Parliamentary and political circles and raised serious constitutional and political questions.
Under the Constitutional scheme, State Legislatures had been given exclusive legislative powers in respect of items in the State List. They could also legislate on matters in the Concurrent List, except in a case of repugnancy where the law made by Parliament on that subject would prevail.
As per rules, a State Legislature could consider a matter through a resolution only if it was within the State's jurisdiction.
Through a resolution a Legislative House calls the attention of the State government to a matter or situation for consideration by that government. Constitutionally speaking, the government could consider the same only if the matter concerns it.
“It seems that there is a certain amount of confusion in the minds of the Assembly Speakers on the competence of State Legislatures to consider such resolutions. Unlike in the U.S., where the residuary powers vest in the States, in India the Constitution vests the residuary powers in Parliament only. So the State Legislature cannot deal with a matter which is outside the area assigned to it by the Constitution.”
“But by no stretch of imagination can we think that the State governments have the jurisdiction to consider the resolutions brought before these two Assemblies seeking Presidential clemency for the convicts and can act on them. In respect of mercy petitions, the President acts on the advice of his or her Council of Ministers. So, what is the role of a State government in this matter? Nothing,” Mr. Achary asserted.
Whatever be the political compulsions, a legislative body is required to function within the framework of constitutional rules and passing a resolution by an Assembly seeking Presidential clemency for a convict is an unprecedented act.
Pointing out that there was an irresistible temptation among the Indian political class to succumb to such pressures, he observed: “Rule of law is what steers the ship of democratic institutions out of the turgid waters of sectarian pressures.”
A precedent, once set, was followed by others in future. Generally, the presiding officers of the legislatures took great amount of care while dealing with issues of constitutional significance, Mr. Achary added.
Source: The Hindu
NEW DELHI, October 27, 2011
http://www.thehindu.com/news/national/article2574161.ece accessed on 8th November 2011
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