The Supreme Court on Wednesday invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former Prime Minister Rajiv Gandhi assassination case.
A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long incarceration for over 30 years to order his release. Perarivalan is currently on bail. His death penalty had earlier been committed to life sentence for murder. Terrorism charges were earlier withdrawn.
The court held that the Tamil Nadu Council of Ministers’ advice on September 9, 2018 to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
It said the long delay and the Governor’s reluctance to take a call on the pardon plea has compelled the court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
The court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code, saying this contention would render Article 161 a “dead-letter” and create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid
Senior advocate Rakesh Dwivedi, for Tamil Nadu, had argued that the prospect of the court waiting for the President’s decision on the mercy plea, as put forward by the Centre, was “completely absurd”. Mr. Dwivedi, along with Tamil Nadu Additional Advocate General Amit Anand Tiwari and advocate Joseph Aristotle, had said federalism would go for a toss if that was allowed by the court.
The court protected federalism by holding that States had the power to advice and aid the Governor in case of pleas of pardon under Article 161 made by convicts in murder cases.
In the long years of litigation, the Centre, had initially assured the Supreme Court that the Governor would take a call on Perarivalan’s pardon plea, only to suddenly change tack in November 2020 to say that it was the President, under advice of the Centre, who was authorised to decide the plea.
The Centre had banked on a Constitution Bench judgment in Union of India versus V. Sriharan in December 2015, to argue that Section 432(7)(a) of the Code of Criminal Procedure (Cr.PC) gave primacy to the Union and not the States when the case was tried under a law to which the executive power of the Union extended to.
An affidavit filed by the Ministry of Home Affairs last year had submitted that the President of India was the “appropriate competent authority” to deal with Perarivalan’s request for freedom.
The Ministry’s short affidavit had said “His Excellency the Governor of Tamil Nadu considered all the facts on record and after perusal of the relevant documents, recorded that the Honourable President of India is the appropriate competent authority to deal with the request for remittance vide his order dated January 25, 2021. The proposal received by the Central government will be processed in accordance with law”.
However, Perarivalan’s lawyers, senior advocate Gopal Sankaranarayanan and Prabu Ramasubramanian, used the same Sriharan judgment of the court to counter that the power of State or Central governments to remit sentences under Section 432 Cr.PC and the clemency power of the President or the Governor could not be equated with each other.
“Section 432 was a creature of the Code (Cr.PC). Articles 72 (power of President to grant pardon) or 161, on the other hand, was a high prerogative vested by the Constitution in the highest functionaries of the Union and the States,” Mr. Sankaranarayanan had argued.
The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes”, Mr. Sankaranarayanan had explained from the Sriharan judgment.
He had argued that the convict was free to choose either the Governor or the President to apply for pardon.
The Centre had also highlighted that the case against Perarivalan concerned the assassination of none other than a former Prime Minister. Forty-three other people had sustained serious injuries in the bomb explosion at Sriperumbudur in Tamil Nadu in 1991.
But Perarivalan had contended that his role in the crime extended to supplying two nine-volt batteries without the knowledge of what it was going to be used for. He said his confession under the lapsed TADA to a police officer was not valid evidence.
He said he was a “19-year-old boy when his mother handed him over to the CBI… and now has lost all his prime youth in prison, that too, in death row under solitary confinement for more than 16 years”. He said his “aged mother and father were waiting for their only son to join them at least in the last years of their life”.
Earlier, Perarivalan had sought an order from the Supreme Court to stay his life sentence till the CBI-led multidisciplinary authority’s inconclusive probe into the larger conspiracy behind the assassination was completed.
He had described his case as “unique” and had related the harsh circumstances under which he had pursued an education in prison. He had said his health had taken a severe beating from the effects of “death row syndrome”.
The wheel began turning in favour of Rajiv Gandhi assassination convict A.G. Perarivalan on February 18, 2014 when a three-judge Bench of the Supreme Court led by then Chief Justice of India P. Sathasivam commuted his and two others’ death penalty to life sentence and made a strong observation in the verdict that “apex constitutional authorities” like the President and the Governor must exercise their clemency powers under Articles 72 and 161, respectively, within the “bounds of constitutional discipline” and in an “expeditious manner”.
Prior to the February 18, 2014 judgment, Perarivalan was facing death which never came despite decades of waiting for it behind the walls of the Vellore prison. His pleas against the death penalty had met with failure.
The apex court had, in May 1999, upheld the TADA court’s verdict of death for Perarivalan. The court had also quickly dismissed his review petition five months later in October 1999. The Tamil Nadu Governor had dismissed the mercy petitions of the convicts the same October. The Governor repeated the act of rejection of mercy in April 2000.
11 whole years
The President took 11 whole years to reject his mercy plea on August 12, 2011. Perarivalan and two of his co-convicts, Murugan and Santhan, had filed writ petitions in the Madras High Court against the prolonged delay of over a decade before the rejection. They said they had “swung between life and death” every day of the waiting.
The three petitions were transferred by the Supreme Court to itself from the High Court. Bringing the first ray of life to Perarivalan, the Bench of Chief Justice (as he was then) Sathasivam, Ranjan Gogoi and Shiv Kirti Singh agreed that “inordinate delay” caused at the hands of the executive to decide the convicts’ mercy petitions was a violation of their fundamental right under Article 21 and was reason enough to commute their capital punishment to life sentence. The Bench agreed with an earlier decision of the Supreme Court in Shatrugnan Chauhan case that such delay amounted to “torture”.
In a short but poignant judgment which reproduced several letters from three convicts to the government describing how the delay was killing them and every day was a “living death”, Chief Justice Sathasivam, who authored the verdict, chastised that “mercy petitions filed under Articles 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim”.\
“The fact that no time limit is prescribed to the President/Governor for disposal of the mercy petition should compel the government to work in a more systematised manner to repose the confidence of the people in the institution of democracy…” Justice Sathasivam noted.
Though Justice Sathasivam’s judgment dealt with commutation of Perarivalan’s death penalty to life and Justice L. Nageswar Rao’s judgment on Wednesday was regarding his release from the case itself, the spirit and message of both judgments are the same, that is, decisions under Articles 72 and 161 should be swift.
“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…” Justice Rao wrote, upholding the right to dignity of a prisoner