One, he can sit on the cabinet recommendation endlessly, as Article 161 of the Constitution does not prescribe any time limit for him to take a decision on the cabinet resolution.
Two, he can return the resolution to the cabinet for clarification or reconsideration.
The third option, which could be the most adventurous, is he can reject the resolution prompting the stake-holders to take the issue to courts, where it will be a time-consuming process.
Former Lok Sabha secretary general Subhash Kashyap said under Article 161, the governor does not have any time limit for giving his decision. “He can consult the Centre, legal experts or just sit on it for whatever time he wants to. The Article does not mention any provision for the governor to act on an assembly or cabinet resolution,” said Kashyap.
Justice D Hariparanthaman, former judge of the Madras high court, while conceding that there was no constitutional deadline for the governor to take a decision, said if there was inordinate delay, people could go to court for a direction for early disposal. “There is no bar as the governor too is a constitutional creature,” he said. As for the ‘theoretical third possibility’ of returning to the state cabinet for reconsideration or for clarification, Justice Hariparanthaman said: “In my experience I have not seen a precedent where the decision of a state cabinet decision was rejected by the governor. It will be against constitutional scheme of things.”
In 1999, governor of Tamil Nadu Fatima Beevi returned the proposal to commute the death sentence of Nalini Sriharan into one of imprisonment for life only because the state government had first merely forwarded the advocate-general’s opinion to the government. After the high court held that the opinion could not replace the procedure of getting advice from the council of ministers, the Tamil Nadu cabinet sent a duly adopted resolution to the governor, leading to Nalini escaping the gallows.
Former solicitor general of India Mohan Parasaran said now it was for the Centre to apply its mind and take a decision. “Though the SC has clearly said the state government has powers to decide on releasing the convicts and has turned down the Centre’s argument on the issue, the governor has the option of getting opinions, legal or otherwise,” said Parasaran. Asked whether the case will once again go to the SC, the constitution expert said it was too early for the case to be once again heard by the SC.