Rajiv Gandhi Assassination : President And Not Governor The Competent Authority To Pardon Perarivalan, Centre Tells Supreme Court
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In the matter of release of A.G. Perarivalan, the convict in the Rajiv Gandhi assassination case, the Centre on Wednesday submitted that it is the President under Article 72 and not the Governor under Article 161 who is competent to grant pardon/remission."If the entire representation was given to an authority which lacks the jurisdiction to consider the representation, then the right, which...
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In the matter of release of A.G. Perarivalan, the convict in the Rajiv Gandhi assassination case, the Centre on Wednesday submitted that it is the President under Article 72 and not the Governor under Article 161 who is competent to grant pardon/remission.
"If the entire representation was given to an authority which lacks the jurisdiction to consider the representation, then the right, which is being urged on account of the inaction of the Governor which, he says, infringed his Article 21 right, cannot be recognized at all", advanced ASG K. M. Nataraj.
"The state government had recommended the release. There were no orders passed by the Governor for over two years. The Governor is acting for the Executive. Now he can't say… If you are aggrieved by the decision of the government, challenge it. This is an extraordinary situation where the recommendation was made by the government and the orders were not passed", observed Justice L. Nageswara Rao.
Indicating Article 72, as per which the power of the President to grant pardon and remissions extends to the Executive power of the Union, the ASG took the bench through Article 73, which explains that the Executive power of the Union extends to all the matters on which the Parliament has the power to make laws. Next, as regards Article 161, he advanced that the power of the Governor is restricted to the extent of the Executive power of the state or the power of the state government to make laws.
Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, pointed the bench to the proviso to Article 73 which states that the executive power referred to in the Article shall not extend in any State to matters with respect in which the Legislature of the State has also power to make laws, unless expressly provided in the Constitution or in any law made by Parliament
To buttress his argument, the ASG relied on the majority judgment in the 2014 Sriharan's case, decided by a constitution bench, where the Union of India had challenged the letter dated 19.02.2014 issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposed to remit the sentence of life imprisonment and to release the 7 respondents who were convicted in the Rajiv Gandhi assassination case.
"The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah (supra) should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government", the bench had ruled in Sriharan case.
"Not once has his objection been raised by the Union of India before Your Lordships all these years. In your September 6, 2018 order (in Sriharan's case), Your Lordships said that an application under Article 161 to the Governor has been made and that the Governor will decide the same as deemed fit. There was no objection to it by the Union of India then. They pop up every five years whenever liberty arises and raise objections. From Nanavati till today, for 70 years, all such questions have been within the executive domain of the Governor and have been dealt with by him. Today, the Union of India is saying that what we have been doing for 70 years is wrong, for all the 90 lakh convicts across all jails in the country, the mercy petitions can lie only to the President of India?! They are saying that since the IPC is a Central act, every exercise of every Governor for the last 70 years is wrong?!", argued Mr. Sankaranarayanan.
"It is obnoxious on the part of the Centre. The Union of India can take up this question, Your Lordships can leave this question open, but this is not a fit case for this. A man who has been languishing in jail long enough cannot be asked to wait for an answer to this question of law raised orally at the last minute on behalf of the Union of India!", he pressed.
'Government of India estopped from questioning the Governor's competence'
Mr Sankaranarayanan proceeded to give the bench a background of how long the petitioner has waited for liberty.
"This was an extraordinary case where a teenager was taken for questioning in 1991, following the assassination of a former Prime Minister. Subsequently, it was found out that he had been held in custody. For 18-19 years, he was held in solitary confinement. He was on death row. The TADA Act convicts him and he was awarded the death sentence. The Supreme Court said that the TADA conviction was wrong and set it aside but retained the conviction under sections 120 B and 302 of the IPC and the Arms Act. This sentence has been served out", narrated the Senior Counsel.
He continued to elaborate that the TADA confession was used for the section 302 conviction, that a mercy petition was filed in 1999 which was rejected 12 years later in 2011. Then, there was the proposal for remission under sections 432 to 435 of the CrPC. The state government considered the remission and the Central government in 2014 filed its challenge to the possibility of remission.The matter went to the Constitution bench in Sriharan's case.
"On 18 April 2018, the Central government rejected our application (for release under the CrPC on the state government's proposal). Because of the delay, the principles of Shatrughan Chauhan case (where the SC said that mercy petitions have to be decided in a time-bound manner) kicked in and the sentence was commuted from death penalty to life imprisonment", he continued.
Then, another mercy petition was filed on December 30, 2015 which has not been acted upon till date. On December 12, 2017, the petitioner brought to the notice of the top court that the former DGP of the state of Tamil Nadu, who was the investigating officer of the case and had taken the TADA confession, has stated that he has committed a mistake, that he had excluded the exculpatory part of the statement and that the petitioner had no idea why he was buying the two batteries that went into making the bomb.
"The Tamil Nadu Cabinet on September 9, 2018 recommended the release. This recommendation went to the Governor on September 9, 2018. Three days before this, on September 6, 2018, when the matter came up before this court, Your Lordships said that the Union of India has given its view and it is binding", advanced Mr. Sankaranarayanan.
In its order of 6.9.2018 in Sriharan's case, a bench headed by Justice Ranjan Gogoi had noted that "in view of the Order dated 18.04.2018 passed by the Joint Secretary, Government of India/Bharat Sarkar, Ministry of Home Affairs/Grih Mantralaya (Judicial Wing, CS Division), nothing would survive for consideration in this Writ Petition. It is accordingly closed". "From the documents filed on 01.09.2018 by the learned counsel, it appears that an application under Article 161 of the Constitution has been filed before the Governor of Tamil Nadu by the respondent- A.G.Perarivalan @ Arivu. Naturally, the authority concerned will be at liberty to decide the said application as deemed fit", it had directed.
"There was an entire cricket team worth of counsels representing the Centre then. Nobody took the objection that please record that 161 is not available. The order was also not challenged! This is the first estoppel to the Government of India", pressed the Senior Advocate.
Continuing, he advanced that in a habeas corpus petition filed by one Nalini, who was the co-accused and also the beneficiary of the Article 161 discretion in 2000 (when her death sentence was commuted to life and no objection thereto was raised by the Government of India), the Union of India has, in February 2020, said that the Ministry of Home Affairs has rejected the proposal of the Tamil Nadu government under section 435 of the CrPC and that it is pending before the Governor of Tamil Nadu.
"This is the second estoppel to the government of India", argued Mr. Sankaranarayanan.
He indicated that in a September 26, 2018 news report, the Governor is quoted as saying that the petitioner cannot be released till the plea of the collateral victims of the bomb blast, which was then pending before the Supreme Court, is decided. The same petition came to be dismissed on May 5, 2019. "So the first hurdle went away", commented the senior counsel.
Secondly, on September 24, 2020, during the course of parole proceedings, the Madras High Court observed that the Governor is waiting for the final report of the Multi Disciplinary Monitoring Agency which is looking into the angle of 'larger conspiracy' behind the case. The CBI came to file its affidavit on November 20, 2020, saying that it has not received any request from the Governor to divulge details of the investigation. It further said that the present petitioner is not the subject matter of further investigation by the MDMA. "So now the second hurdle is also not there", commented Mr. Sankaranarayanan.
"There is at least one instance where Your Lordships dealt with high constitutional functionaries on the aspect of timelines – even on the point of pardons. Then there is a judgement by Justice Rohinton Nariman where a three-month period was contemplated for the exercise of his powers by the Speaker", concluded the senior advocate.
'Nilofer Nisha to Apply'
Sankaranarayanan referred to the Nilofer Nisha judgment of the Supreme Court, where he said the court exercised powers under Article 142 to order the release of prisoners in Tamil Nadu who were covered under the same remission notification which dealt with Perarivalan as well.
"The state of Tamil Nadu had under Article 161 framed guidelines for release of convicts who have been in jail for more than 10 years. Habeas Corpus petitions were filed by prisoners who don't have the benefit of these guidelines. Your Lordships said that since they are not in illegal custody, no habeas corpus can lie. Your Lordships asked them to make a representation to the government, to be decided in three months", explained the Senior Advocate.
"Your Lordships had even taken up the cases of the respondents before the Supreme Court. All of them were 302 cases, as am I. They had been in jail for 10 to 16 years. I have been in jail for 30 years. Your Lordships had looked at their conduct, qualifications, and you released a total of 4 convicts under Article 142", he narrated.
He urged that Nilofar Nisha should apply to Perarivalan also. Here, the government took a decision of release, the cabinet even recommended it – the gap is only of the signing of this recommendation by the Governor who, he argued, is bound by the recommendation.
"I have attached photos and certificates in support of my resplendent record of conduct. I was let out on parole on four or five occasions and there was no risk-I went quietly, undertook the medical test and came back. I also have old parents who are on their last limb. Please look at the certification obtained by me during the period of incarceration. I undertook the higher senior secondary exam and scored 91.3%. I have also acquired a diploma in desktop publishing. Even if my guilt is complete, it is clear that I have been trying to make myself better and assimilate myself in the society", submitted Mr. Sankaranarayanan.
"Are you covered under the Government Order dealt with in the Nilofer Nisha case?", asked the bench. "No. Because we are covered under 435 CrPC (State Government to act after consultation with Central Government in certain cases of commutation/remission)", replied the Senior Advocate.
The hearing will continue tomorrow.