A.G  Perarivalan vs State

BACKGROUND

A.G. Perarivalan was arrested in 1991 on the charge of supplying two nine-volt batteries to Sivasaran, the mastermind behind the conspiracy of the assassination of former PM Rajiv Gandhi. In 1998, he was convicted and sentenced to death by the TADA court established under the Terrorism and Disruptive Activities (Prevention) Act, the decision was upheld by the Supreme Court, however, conviction under the TADA Act was set aside. Perarivalan filed a mercy petition to the president which was rejected in 2011 after 11 years, finding the delay violative of due process mentioned under Article 21, SC commuted the punishment.

In 2014, the Tamil government used its power provided under section 432 of CrPC to order the release of all seven convicts, but the release was stayed by SC. In 2016, the Tamil government again sent an official proposal to the Union for seeking remission for the seven convicts while Perarivalan, too, submitted, another remission petition under Article 161 in 2015. Union government, however, rejected the proposal with the view that releasing the killers of the Former PM would set a dangerous precedent. After this, the Tamil Nadu cabinet again passed a resolution for releasing all seven convicts under Article 161 and sent it to the governor but the governor neither decided on the state resolution nor the remission petition In 2021, he referred the resolution to the president considering the president, a competent authority on the matter. Meanwhile, Perarivalan moved to the Supreme Court seeking suspension of his sentence.

FACTS OF THE CASE

The appellant, A.G. Perarivalan, who was charged and convicted for his involvement in former PM Rajiv Gandhi’s assassination, approached the Supreme Court for the suspension of his sentence which was commuted by the same on the grounds of delay in his remission petition along with medical grounds after the state government’s proposal under Article 161 which was awaiting governor’s opinion from two and a half year.

While the governor reserved the proposal for the president’s assent, only when the apex court started enquiring about the reason behind the delay.

ISSUES INVOLVED

1. Whether the advice tendered by the state cabinet is binding under Article 161?
2. Was the governor correct in its decision to make reference to the president in the matter?
3. Whether non-exercise of powers under Article 161 subject to judicial review?

ARGUMENTS MADE

Appellant side

• The appellant submitted that the governor should have decided the recommendation of the state cabinet regarding remission.
• And the governor lacked the power to refer the recommendation of the state cabinet to the president.
• And recommendation made by the State cabinet is binding on the Governor and at most he could have requested the state cabinet to reconsider its decision.
• And contended that if the reasoning forwarded by the respondents is to be accepted that the president of India is the competent authority then every pardon so awarded by the governor would be unconstitutional under Article 161.
• Counsel appearing for the state of Tamil Nadu, supported the appellants and submitted that it has been observed by the same court in several cases that under the scope of articles 161 and 163, the governor is bound by the advice of the Council of Ministers unless mentioned under the constitution. He also submitted that the reasonable course of action in case of excess of jurisdiction is to approach the courts and not to cause undue delay, which would be violative of the federal structure of the country.

Defendant side

• The defendant submitted that the appropriate government authority in the matter is the President of India and the governor is not always bound by the advice of the state cabinet and there are some recognized exceptions where he is required to act according to his discretion and he can come to a different conclusion through his discretion.
• He also submitted that the reference of the recommendation to the President of India is beyond the scope of the writ petition and should not be considered.

RATIO DECIDENDI

The court while giving judgment observed that India adopted a parliamentary form of government where even though the powers are vested in the president and governor with all practical purposes, they are bound to exercise those powers on the aid and advice of the Council of Ministers headed by the Prime minister and chief minister respectively. The discretion of the governor extends to only those jurisdictions which are provided by the constitution. The court also observed that since the petitions under Article 161 deal with the liberty of individuals, inordinate delay in deciding the matter would cause mental as well as physical distress when the state cabinet itself has decided to release the person. The court rejected the contention that the Governor has discretionary power in the present case as there was no argument for non-consideration of relevant factors by the State cabinet while making the recommendation.

JUDGMENT

The court while disposing of the appeal, held that –

• The advice tendered by the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.
• The governor was not authorized to send the recommendation to the President of India as this decision lacked constitutional backing and doing this is against the established constitutional scheme, whereby the governor is a shorthand expression for the State government and it was accepted that it is the executive power of the state which extends to section 302 IPC, under it is a subject matter of Entry 1 of list III.
•  The non-performance of power under Article 161 or inexplicable delay in the exercise of such power not attributable to the prisoner is subject to judicial review, especially when the State Cabinet has already made the recommendation to the governor for the same.

CONCLUSION

The court’s decision is a welcomed one as it provides one more check on the powers of the executive having quasi-judicial powers to reduce the arbitrariness in decision making which can be a matter of life and death for the prisoner. However, the power of judicial review for non-performance of powers under Article 161 should be carefully exercised as sometimes, the executive authorities are in a better position to understand the prevailing consensus about the remission or commutation of the prisoner in question and the nature of the act committed by them. Summing it up, the scope of judicial review for non-performance of constitutional duties was much needed to fill the void, however, it too needs to be used selectively and judiciously to provide the executive with much-needed independence, to perform their duties at their own pace and with all due considerations, without the fear of being prosecuted for every delay.

Reference(s):

1. https://www.scconline.com/blog/post/2022/05/19/rajiv-gandhi-assassination-perarivalan-convict-release-supreme-court-india-governor-recommendation-judgments-legal-law-updates-research-news/
2. https://www.thehindu.com/news/national/supreme-court-reserves-verdict-in-perarivalan-case/article65405015.ece
3. https://timesofindia.indiatimes.com/readersblog/idea/the-case-of-a-g-perarivalan-43059/
4. https://www.legalserviceindia.com/legal/article-9356-dissecting-supreme-court-s-verdict-in-a-g-perarivalan-v-s-state-of-tamil-nadu.html