The Supreme Court, on Wednesday, while exercising power under Article 142 of the Constitution to release A.G. Perarivalan, one of the convicts in Rajiv Gandhi's assassination, restated 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.
A Bench comprising Justices L. Nageshwara Rao, B.R. Gavai and A.S. Bopanna was unable to accept the submission made by the Additional Solicitor General, Mr. K.M. Nataraj that the President has the exclusive power under Article 72 to pardon or grant remission or commute sentences imposed under the provisions of the Indian Penal Code. In this regard it noted -
"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."
ASG had placed reliance on Union of India v. Sriharan (2016) 7 SCC 1, to argue in favour of the exclusivity of the power of the President to remit sentences imposed under the IPC. Senior Advocate, Mr. Gopal Sankaranaryanan, appearing on behalf of Perarivalan had expressed apprehension that if the submission of the ASG is accepted then it would render all the remissions/pardons/commutations granted by Governors in respect of sentences imposed under the IPC, thus far, unconstitutional.
The Court noted that the relevant discussion in the present context is with respect to Article 73 of the Constitution, which deals with the extent of executive power of the Union. In Sriharan, in this regard, the Apex Court had held that 'where the State Legislature is also empowered to make laws on the same subject, determination of whether the executive power of the Union Government would extend to the State Government or not has to be decided by taking into account the fact of whether executive power has been expressly conferred on the Centre, either by the Constitution or under the law made by the Parliament'. In other words, in case of entries in Concurrent List of the Seventh Schedule of the Constitution, with respect to which both Union and State have power to enact laws, executive power of the Union would extend to such subject matters only when the same is explicitly mentioned in the Constitution or law made by the Parliament. In absence of any such reservation in favour of the Union, executive power of the State remains intact. As the Indian Penal Code or the Constitution does not expressly confer executive power on the Union Government with respect to the provisions of IPC, there is no bar on the State in exercising its executive power with respect to Section 302 of the Indian Penal Code.
[Case Title: A.G. Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu And Anr. Crl.A. No. 10039-10040 of 2016]
Citation : 2022 LiveLaw (SC) 494
Constitution of India - Article 161 - The advice of the State Cabinet is binding on the Governor in matters relating to commutation / remission of sentences under Article 161. (Para 19)
Constitution of India - Article 161 - Non-exercise of the power by Governor 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(Para 20).
Code of Criminal Procedure -Section 432 - 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.