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THE SUPREME Court on Wednesday ordered the release of A G Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case, exercising its special powers under Article 142 of the Constitution.
The order came 24 years after Perarivalan was sentenced to death in the case by a lower court, and two months after he was granted bail by the apex court. Perarivalan was arrested on June 11, 1991, at the age of 19, weeks after former Prime Minister Rajiv Gandhi was killed in a suicide bomb attack at Sriperumbudur in Tamil Nadu on May 21.
“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 (the) crime. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled,” the apex court ordered.
The bench of Justices L Nageswara Rao, B R Gavai and A S Bopanna also disapproved of the Tamil Nadu Governor sending to the President the recommendation of the State Cabinet to remit the remaining part of the convict’s sentence.
The bench said that “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”. It said the Governor’s “action is contrary to the Constitutional scheme”.
The bench refused to accept the Centre’s argument that, as laid down by the Supreme Court in a 2014 decision (Union of India vs Sriharan), the “appropriate government” to decide on remission of sentence in matters to which the executive power of the Union extends is the Union Government. This is “incorrect”, the bench said.
The bench said that where both the state and Centre had the power to make laws, the Union Government’s power will take precedence only if “executive power had been expressly conferred on the Union under the Constitution or the law made by the Parliament, failing which the executive power of the State remained intact”.
Perarivalan was sentenced to death by a lower court in January 1998 after being convicted under IPC section 302 (murder) read with section 120B (criminal conspiracy) for supplying two nine-volt batteries used to trigger the belt bomb that killed former Prime Minister Rajiv Gandhi. The sentence was upheld by the Supreme Court in May 1999.
On Wednesday, the bench said that “insofar as offences under Section 302 IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the State would extend, irrespective of whether the subject matter of Section 302 is considered to be covered by an entry” in the concurrent list.
Noting that the Governor had forwarded the recommendation to the President two-and-a-half years after it was made by the State Cabinet, the bench said this “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 judgment pointed out that the Governor’s power under Article 161 to grant pardons, reprieves, respites or remissions of punishment, is subject to judicial review — and also that “non-exercise of the power under Article 161 is not immune from judicial review”.
“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, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect,” it said.
The court refused to remand the matter back to the Governor for reconsideration. “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,” it said.
The judgement came on Perarivalan’s appeal against a 2015 order of the Madras High Court dismissing two petitions filed by him — one against a TADA court order dismissing his plea for effective monitoring of the pending investigation and the other seeking direction to the CBI to complete the investigation expeditiously.
The Supreme Court had granted bail to Perarivalan on March 9 this year, saying it was taking into account the fact that he had already spent over three decades in jail.
In 2014, the death sentence of Perarivalan and two others in the case, Sri Lankan nationals Murugan and Santhan, were commuted to life citing the long pendency of their mercy petitions. While a pardon request moved by Perarivalan in 2015 remained pending before the Governor, the then AIADMK government recommended in 2018 the premature release of all seven convicts in the case.
In February 2021, the Centre told the Supreme Court that the Governor had “considered all the facts on record and that after perusal of the relevant documents, recorded that the Hon’ble President of India is the appropriate competent authority to deal with the…request for remittance”.
Two other convicts in the case — Nalini from Chennai and Ravichandran from Madurai — are also currently on parole. Sri Lankans Robert Payas and Jayakumar are the other convicts in the case.
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