Why Not Release AG Perarivalan In Rajiv Gandhi Assasination Case? Supreme Court Asks Centre

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was hearing the plea for release of AG Perarivalan, one of the seven convicts serving life sentence in the case related to the assassination of former Prime Minister Rajiv Gandhi in 1991. On March 9, the bench had granted him bail.

Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of the petitioner, submitted then even though there exists a binding recommendation of the State Cabinet with respect to the application for remission submitted by Perarivalan, the Tamil Nadu Governor Governor instead of considering the same has now referred it to the President.

On 06.09.2018, Periarivalan had submitted a remission application to the Governor under Article 161 of the Constitution of India. After considering the same, on 09.09.2018, the Government gave recommendation, which is binding on the Governor. On 26.09.2018, the Governor had stated that he would take a call after the Writ Petition pending before the Supreme Court in the matter is decided. Even after the petition was dismissed on 09.05.2019, the Governor has not taken a decision.

On 24.09.2021, the Madras High Court in one of the parole proceedings of Perarivalan had recorded that the Governor is awaiting the report of the Multi Disciplinary Monitoring Authority (MDMA), which was probing 'larger conspiracy' into the assassination of Mr. Gandhi. In November, 2021, in the present proceedings, CBI had filed an affidavit stating that there was no request from the Governor seeking the MDMA reports.

In November, 2021, the Apex Court was displeased that the application was pending before the Governor for over two years. On 22.01.2021, the Apex Court had asked the Governor to decide the application for remission within a week's time based on the submission made by Solicitor General, Mr. Tushar Mehta that the Governor would take a decision in 3-4 days. However, till date no decision has been taken by the Governor.

Now the Ministry of Home Affairs has submitted an affidavit stating that the Tamil Nadu Governor has referred the application to the President, whom he considered to be the competent authority to decide the same.

Mr. Sankaranarayanan pointed out that the consistent stand of the Union Government for the last 20 years is that in all cases pertaining to offences punishable under Section 302 IPC, the application for remission would be considered by the Governor.

"The consistent stand with respect to pardon powers for the last 20 years of the Union Government before this Court and Madras High Court has been that it is the Governor's remit. The second thing is that from 1950 on all IPC offences, all S. 302 cases were with the Governor."

Thereafter, he submitted -

"The conspectus of my submission is that when there is a binding recommendation and the Government had not taken a decision it would be fit case for release."

"Why don't we release him? 36 years, in any event why should he be caught in the battle of who should decide mercy application?", Justice Rao posed this question to the Counsel for the State of Tamil Nadu.

Senior Advocate, Mr. Rakesh Dwivedi appearing on behalf of the State referred to the judgment of the Apex Court Nabam Rebia v. Deputy Speaker And Ors. to demonstrate the remit of the power of the Governor to take an independent call without considering the binding recommendation of the Cabinet. The relevant portion is quoted below -

"The above position, leaves no room for any doubt, that the Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the State executive and the State legislature. The interpretation placed on Article 163(2), on behalf of the respondents, has just that effect, because of the following contentions advanced on behalf of the respondents. Firstly, whenever a question arises, whether in discharging a particular function, the Governor can or cannot act in his own discretion. According to the respondents, the discretion of the Governor, on the above question, is final. Secondly, since the provision itself postulates, that " … the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion…", according to the respondents, makes the Governor's orders based on his own discretion, immune from judicial review. Accepting the above position, will convert the Governor into an all pervading super-constitutional authority. This position is not acceptable because an examination of the executive and legislative functions of the Governor, from the surrounding provisions of the Constitution clearly brings out, that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State. The position adopted on behalf of the appellants, on the other hand, augurs well in an overall harmonious construction of the provisions of the Constitution. Even on a cursory examination of the relevant provisions of the Constitution, we are inclined to accept the contention advanced on behalf of the appellants."

[...]

"This Court in the Samsher Singh case declared, that wherever the Constitution required the satisfaction of the President or the Governor, for the exercise of any power or function, as for example under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction required by the Constitution was not the personal satisfaction of the President or the Governor. "… but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government …". It is therefore clear, that even though the Governor may be authorized to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorized, by or under a constitutional provision, to discharge the concerned function, in his own discretion.

We are therefore of the considered view, that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides, that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the concerned constitutional provision, could not be construed otherwise. We therefore hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view, that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.

[...]

Needless to mention, that under Article 163(1), the Governor can exercise only such functions in his own discretion which he is expressly required, by or under the Constitution, to exercise in his discretion.

He argued that the Government can only act independently when the power to do so is explicitly provided in the Constitution. It was highlighted that only one provision in the Constitutional scheme provides such power - Article 200 and 201 grants power to the Governor to reserve a bill for the President.

"Under the scheme of the Constitution, there is only one provision where the Government can only reserve a bill for a President i.e. Articles 200 and 201. It is contemplated in Articles 200 and 201, when a bill has been passed, he can give assent or reserve for the President."

He argued that -

"Pardon power is not a bill."

It was emphasised upon that the sentence for offences punishable under the Central Acts were already served and therefore, the authority of the union executive and that of the President would not be attracted in the present case. The only offence for which Perarivalan is now serving sentence is punishable under Section 302 of the IPC and is in the ambit of the State.

Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government argued that it was well within the authority of the Governor to refer the remission plea to the President, who is the competent authority in the present case.

Justice Gavai asked him to refer to the provision of the Constitution from where the Governor draws the power to directly refer the application to the President. He noted that if the source of such reference is not provided in the Constitution, then the reference in the present case would violate the federal structure envisaged in the Constitution.

"Otherwise we will give a go by to the entire federal structure of the Constitution -for everything if the Governor refers it to the President. There has to be a source."

Justice Rao was in agreement with the observation made by Justice Gavai. He stated -

"We are not prima facie willing to accept your statement - the Governor does not have an independent role under the Constitution to say that the Cabinet is wrong and I'll take a different route."

Mr. Natraj argued that reference in the present case is distinct from reference of a bill, because the Constitution explicitly bestows the power of pardon on the President under Article 72.

Unsatisfied with the response Justice Gavai again enquired about the Constitutional provision which confers power on the Governor to refer it to the President.

Mr. Nataraj submitted -

"Source is in Article 72. When there is a conflict between Article 72 and Article 161 it has to be resolved in terms of Article 246-254. If the President is the competent authority to take a call then on the same subject the Governor cannot take a call."

He read Article 72 -

"72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force."

Justice Gavai also noted that the representative of the Governor had indeed submitted before the Apex Court that the decision would be taken by him.

Mr. Nataraj responded that the 'decision to be taken by the Governor' would refer to the decision whether he was competent to consider the remission plea in the present case.

Concerned that if the submission of the Union Government is accepted then it would be a crushing blow to the concept of federal structure, Justice Rao remarked -

"If the Council of Ministers sends something to him, if he doesn't like it can he send it to the President? Is there no limitation on power? Can he do that?"

Mr. Nataraj reiterated that if the Governor did not have the power to decide the remission plea then he had to send it to the President.

Justice Rao opined that it would set a bad precedent if such reference is encouraged. He noted -

"This sets out a bad precedent. This strikes at the federal structure of the country. You cannot just say that if he cannot decide he will send it to the President. Too far-fetched."

He added that the proper course would have been to inform the Council of Ministers about the incompetence.

"Proper course would have been for the Governor to point this out to the Council of Ministers. He cannot refer it to the President. There has to be some source for doing that."

Mr. Dwivedi referred to Maru Ram v. Union of India to argue -

"Supposing the State Govt. is stepping beyond its powers, then somebody can challenge and the constitutional court will decide, not the Governor."

Justice Rao stated that Perarivalan can be released based on the fact that the Court had previously released several convicts who have served 20-25 years of life sentence.

"Without deciding this point, considering the orders passed by this Court in respect to persons who have been in jail for 20-25 years, why don't we pass an order without deciding that issue."

Mr. Natarajan beseeched the Bench to decide the larger issue of reference of the remission plea before taking a call in this regard. The matter will be heard further next Wednesday.

On 09.03.2022, inspite of the vehement objection of the Union Government, the Supreme Court had granted Perarivalan bail on the consideration that he had already spent more than 30 years in prison.

[Case Title: AG Perarivalan v State of Tamil Nadu | SLP(Criminal) No 10039/2016]

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