The Supreme Court in A.G. Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu And Anr while exercising power under Article 142 of the Constitution to release A.G. Perarivalan, one of the convicts in Rajiv Gandhi's assassination, reiterated that Governor has the power under Article 161 to remit/commute/pardon sentences imposed under Section 302 of the Indian Penal Code, 1860 since the executive power of the State extends to the said provision.
The Court held that "The understanding sought to be attributed to the judgment of this Court in Sriharan (supra) with respect to the Union Government having the power to remit/commute sentences imposed under Section 302, IPC is incorrect, as no express executive power has been conferred on the Centre either under the Constitution or law made by the Parliament in relation to Section 302. In the absence of such specific conferment, it is the executive power of the State that extends with respect to Section 302, assuming that the subject matter of Section 302 is covered by Entry 1 of List III."
Further, the Court also elaborated on the Constitutional provisions from which the power to commute sentences is derived, “The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution. Article 162 makes it clear that the executive power of the State shall extend to matters with respect to which the Legislature of the State has power to make laws. Article163 of the Constitution provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”
The Court also held that even though the Governor has the power to commute a sentence, he can do so on the advice of the Council of Ministers only, relying on Maru Ram v. Union of India which authoritatively summed up the position with respect to Article 161, as reproduced hereinafter: “…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”
Therefore, the court reiterated that 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. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government.