The Supreme Court on Wednesday invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former Prime Minister Rajiv Gandhi assassination case.
A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long incarceration for over 30 years to order his release. Perarivalan is currently on bail. The apex court had commuted his death penalty to life sentence for murder in 2014.
The court held that the Tamil Nadu Council of Ministers’ advice on September 9, 2018 to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution. The Governor had no business forwarding the pardon plea to the President after sitting on it for years together.
Non-exercise of power
“The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President. Such action is contrary to the constitutional scheme,” the Supreme Court held.
It said the Governor’s delay to decide Perarivalan’s pardon for more than two years has compelled the court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
After all, the court said, a Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review.
“Taking into account Perarivalan’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition under Article 161 for two-and-a-half years after the recommendation of the State Cabinet, we do not consider it fit to remand the matter for the Governor’s consideration. In exercise of our power under Article 142 of the Constitution, we direct that he is deemed to have served the sentence... Perarivalan, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled,” the court ordered.
Centre’s stand rejected
The Court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code. The court had said that such a contention would render Article 161 a “dead-letter” and create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid. Senior advocate Rakesh Dwivedi, for Tamil Nadu, had argued that the prospect of the court waiting for the President’s decision on the mercy plea, as put forward by the Centre, was “completely absurd”. Mr. Dwivedi, along with Tamil Nadu Additional Attorney-General Amit Anand Tiwari and advocate Joseph Aristotle, had said federalism would go for a toss if that was allowed by the court.
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