SC releases the convict in Rajiv Gandhi Murder
The Supreme Court (SC), on 18th May 2022, ordered the release of A G Perarivalan, one of the life convicts in the Rajiv Gandhi assassination (in the case AG Perarivalan v State) by resolving some of the unsettled legal issues.
A G Perarivalan, aged 19 then, was accused of buying the two 9-volt ‘Golden Power’ battery cells, which were used in the bomb that killed Rajiv Gandhi on 21st May 1991, for LTTE man Sivarasan, who masterminded the conspiracy.
Inordinate delay in deciding mercy plea
The main reason that weighed in with the SC while ordering Perarivalan’s release after three-decade long incarceration was that his mercy petition under Article 161 of the Constitution remained pending for 2 ½ years, after the State Cabinet recommended for remission of his sentence, and again for over a year on account of a reference made by the Governor to the President of India. On account of such a long delay in not taking any decision on his mercy plea for release, a mercy petition was filed in the SC, as well.
On considering the petition, the SC could find any appropriate reason to remand the matter again for the Governor’s consideration. Therefore, the court, in exercise of power under Article 142 of the Constitution and considering the exceptional facts and circumstances of the case, directed that the appellant, who is on bail, be deemed to have served the sentence in connection with the crime and was consequently set at liberty in the absence of any other disqualification.
Factors that resulted in his release
The factors that the SC noticed were that Perarivalan was 19 years of age at the time of his arrest and has been incarcerated altogether for 32 years. He had spent 16 years on the death row and 29 years in solitary confinement in prison.
The SC noticed that there has been no complaint relating to his conduct in jail or breach of any condition of release when he was on parole on two occasions. Medical records, of Perarivalan, show that he is suffering from chronic ailments.
Above all, Mr Perarivalan has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses during his incarceration, all indicating of his transformation from his guilty past to a civilised present.
Charges against Perarivalan
Perarivalan’s conviction and sentence to death by the designated TADA Court, was for offences under Indian Penal Code (IPC), the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Death was converted to life term
Earlier on 18th February 2014, the SC commuted the death sentence to imprisonment for life when Justice K T Thomas, who was a presiding judge convicting him for death penalty, publicly raised the issue of double jeopardy in the case in the year 2013.
Justice Thomas said hanging the convicts after 23 years would be a third type of constitutionally incorrect sentence. He added that if they were hanged after a long incarceration, they would be subjected to two penalties for one offence.
Governor is bound by the advice of government
The SC pointed out in this case that in matters relating to commutation / remission of sentences under Article 161 of the Constitution, the Governor is bound by the advice of the appropriate government.
The order of release of a convict, as decided by the government under Article 161 of the Constitution, will have to be issued with the Governor’s approval, under the Rules of Business and as a matter of constitutional courtesy, despite the decision is a prerogative of the executive government.
The Governor, as the SC says, is in fact only a shorthand expression for the State Government in matters connected with Article 161 of the Constitution.
Governor has no power to refer the plea to the President
Similarly, the SC says the Governor has no power to refer a recommendation made by the State Cabinet to the President of India.
In this case, the Governor should not have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme, the SC pointed out.
Governor sent the plea when SC enquired of the petition
In the case at hand, recommendation made by the State Cabinet was on 9th September 2018, which remained pending before the Governor for almost two and a half years without a decision being taken.
It was only when the SC started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of Perarivalan’s sentence to the President of India.
Governor’s action has immunity but not his inaction
In fact, the Governor has immunity 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.
But the SC points out that non-exercise of the power under Article 161 is not immune from judicial review and court can look into such inaction from his part.
That means Governor’s keeping of the remission plea in abeyance for a long period of time is amenable to scrutiny by the constitutional courts as held by a catena of cases such as Epuru Sudhakar v Govt. of A.P.
Governor can pardon death convict
The Central government, relying on the judgement in Union of India v. Sriharan [(2016) 7 SCC 1], argued that the President alone has power to pardon a death convict. But the SC declared that Governor of a State can pardon prisoners, including death row convicts, even before they have served a minimum 14 years of prison sentence, under Article 161 of the Constitution.
The SC says the existence of Section 433A of the Code of Criminal Procedure (CrPC), which mandates that a prisoner’s sentence can be remitted only after 14 years of jail, cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
Governor exercises government’s power
Since the Governor, in exercise of the power of the sovereign, is bound to act on the aid and advice of the State Government except in specified occasions. The exercise of sovereign power of a Governor to pardon a prisoner under Article 161 of the Constitution is actually an exercise of power by the State government and not by the Governor on his own right or discretion.
Use of Article 142 is an extravaganza herein
Using Article 142 of the Constitution in this case by the SC to grant pardon / remission is an extravagant exercise of powers. Granting pardon / remission is a power that comes within the executive domain as per the constitutional scheme. In fact, the SC is usurping the process of the executive under the Constitution.
It is true that the Governor has to act in accordance with the advice of the Ministry and he is competent to grant pardon / remission under Section 302 of the Criminal Procedures Code which comes within the law-making power of the state as it being in the concurrent list. But the governor is not competent to exercise such powers in the offences coming under The Arms Act, The Explosive Substance Act, The Passport Act, The Foreigners Act etc in which Mr Perarivalan is an accused.
