The Supreme Court on Thursday ordered release of AG Perarivalan, convict in the Rajiv Gandhi assassination case, invoking powers under Article 142 of the Constitution. The Apex Court was of the view that the inordinate delay in deciding Perarivalan's early release plea by the Governor under Article 161 warranted his release.
Perarivalan, who had served over 30 years in prison, approached the Court aggrieved by the delay in his release despite a recommendation given by the Tamil Nadu government in 2018 to remit his sentence. The case witnessed a legal dispute as to who is the appropriate authority to decide the remission plea - whether the President or the Governor. In the interregnum, he was enlarged on bail by the Apex Court vide order dated 09.03.2022.
A bench comprising Justices L Nageswara Rao, BR Gavai and AS Bopanna observed that the Tamil Nadu State Cabinet took the decision to grant remission to Perarivalan on relevant considerations. The Bench further said that the inordinate delay by the Tamil Nadu governor in exercising his powers under Article 161 of the Constitution can be subject to judicial review. It refused to accept Union Government's submission that the President has exclusive power to grant remission is cases pertaining to Section 302 of the Indian Penal Code, 1860, opining that otherwise, powers of the Governor under Article 161 would be render otiose. The Bench reckoned that the State Government is well-within its authority to aid and advice the Governor in pardon/remission pleas pertaining to cases of murder.
"Taking into account the Appellant'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 the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled", the Court stated.
"The Appellant 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 the 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. Medical records, filed on behalf of the Appellant, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses", the Court added.
The Bench passed the aforesaid order in a plea filed by A.G. Perarivalan, the life convict in the Rajiv Gandhi assassination case, seeking release from the prison based on the recommendation made by the State Government in September 2018. As the Bench had reserved the judgment on 11.05.2022, it had made it clear that in the present order it would limit itself to the issue of the reference of the decision of the Council of Ministers of Tamil Nadu made by the Governor to the President.
In 2014, the Apex Court had commuted the death sentence imposed on Perarivalan to life imprisonment on account of the undue and unexplained delay in deciding his mercy plea. On 06.09.2018, Perarivalan submitted an early release application to the Governor under Article 161 of the Constitution of India. On 09.09.2018, the State Cabinet decided to accept his remission plea and accordingly forwarded its recommendation to the Governor. Thereafter, the Governor had kept the plea in abeyance for quite some time. As the matter came up for hearing before the Apex Court in November, 2020, it expressed displeasure regarding the pendency. On 21.01.2021, the Solicitor General assured the Apex Court that the Governor would decide in three to four days. On 22.01.2021, the Bench asked the Governor to decide within a week's time. However, it appears from an affidavit submitted by the Ministry of Home Affairs that, considering the President to be the competent authority to decide on the plea, the Governor had referred the recommendation of the Cabinet to him. Taking note of the fact that he had been in jail for 32 years (36 years without remission), on 09.03.2022, the Bench granted him bail.
Both, Senior Advocate, Mr. Rakesh Dwivedi, appearing for the State of Tamil Nadu and Senior Advocate, Mr. Gopal Sankaranarayanan, representing Peraivalan, have objected to such 'reference', which has no statutory or constitutional validity. Mr. Sankaranarayanan had argued to an extent that considering the binding recommendation of the Cabinet and the fact regarding pendency of the decision by the Governor on the remission plea, Perarival ought to be released. Referring to Nabam Rebia v. Deputy Speaker And Ors., Mr. Dwivedi had raised serious concerns about the TN Governor taking an independent call without considering the binding recommendation of the Cabinet. He emphasised that the sentence for offences under the Central Act had already been undergone and the only offence for which Perarivalan is now serving sentence is punishable under Section 302 IPC.
Though initially, the Bench was keen to pass an order on his release considering the precedent, that the Apex Court had previously released prisoners who have served over 25 years of sentence, without going into the issue of reference. But at the request of the Additional Solicitor General, Mr. K.M. Nataraj, who vehemently defended the reference made by the Governor to the President, to decide the issue of reference on merit, the Bench proceeded with the same.
The Bench was of the prima facie view that the act of reference undermining the binding recommendation of the State Cabinet, sets out a bad precedent and strikes as the heart of the federal structure envisaged by the Constitution.
ASG had argued that sub-clause 7 of Section 432 CrPC postulates in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate government to consider pleas of remission. To demonstrate the extent of the executive power of the Union, he referred to Article 73 of the Constitution, which contemplates that such powers would extend to all such matters with respect to which Parliament has power to make laws. Indicating that the Indian Penal Code is a law made by the Parliament, he argued that remission plea in regard to offences under the same would be considered by the President. It was further averred that IPC is in the concurrent list, applying the principles laid down in Article 246 to 245, when both the Union Government and the State Government has the executive power, that of the Union Government would take primacy.
Mr. Dwivedi contended that proviso to Article 73 of the Constitution makes it abundantly clear that the executive power of the Union Government would not extend to matters in respect to which State Legislature also has power to make laws, until and unless the same is explicitly mentioned in the Constitution or any Central Law. Since neither the IPC nor the CrPC have a saving clause which reserves power for the Union Government, the executive power of the Union Government would not extend to matters in the remit of the State executive. Moreover, he clarified that IPC is not an enactment of the Parliament, but an existing law, which has been, undoubtedly, amended from time to time by the Parliament. Mr. Dwivedi argued that IPC is a compilation of penal laws, and deals with a variety of offences, which are referable to various entries in different lists of Schedule 7 of the Constitution.
Case Title : AG Perarivalan versus State
Citation : 2022 LiveLaw (SC) 494