India News | SC Orders Release of Rajiv Gandhi Assassination Case Convict A G Perarivalan
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New Delhi, May 18 (PTI)
Invoking its extraordinary power under Article 142 of the Constitution, the Supreme Court Wednesday ordered the release of A G Perarivalan, who has served over 30 years in jail in the Rajiv Gandhi assassination case, and said the Tamil Nadu Governor ought not to have sent the "binding" advice made by the State Cabinet for his release to the President.
While ordering that Perarivalan is "set at liberty forthwith," the apex court also said the reference to Tamil Nadu Cabinet's recommendation to the President after two and a half years was without any constitutional backing and the "inexplicable" delay in deciding remission is "inexcusable" as it contributes to adverse physical conditions and mental distress to the inmates.
A three-judge bench headed by Justice L Nageswara Rao said the Tamil Nadu state cabinet's advice is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
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"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," the bench also comprising Justices B R Gavai and A S Bopanna said.
Observing that the Tamil Nadu Governor ought not to have sent the recommendation made by the State Cabinet to the President, the apex court said such action is contrary to the constitutional scheme elaborated above.
"It is relevant to point out that the recommendation made by the State Cabinet was on September 9, 2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, that the Governor forwarded the recommendation made by the State Government for the remission of the Appellant's sentence to the President," the bench said.
The apex court said it was fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties.
The bench, however, said it has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds, and non-exercise of the power under Article 161 is not immune from judicial review.
"Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay, not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence," the bench said.
The apex court also discarded the Centre's argument that the president exclusively has the power to grant pardon in a case under section 302 of the Indian Penal Code, saying this would render article 161 (power of the governor to grant pardon) functionless.
"The understanding sought to be attributed to the judgement of this Court in Sriharan 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," the bench said in its 29-page judgement.
The top court noted that Perarivalan was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on death row and 29 years in solitary confinement.
"There has been no complaint relating to his conduct in jail. On the two occasions that the appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release...
"Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for the remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor's consideration," the bench said.
The apex court said that in the absence of any other disqualification and the exceptional facts and circumstances of this case, in the exercise of our power under Article 142 of the Constitution, "the appellant is deemed to have served the sentence in connection with the crime. The Appellant, who is on bail, is set at liberty forthwith."
It said non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court.
"The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby the Governor is but a shorthand expression for the State Government” as observed by this Court," the bench said.
Article 142 deals with the Supreme Court's power to exercise its jurisdiction and pass the order for doing complete justice in any cause or matter pending before it.
(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)