Perarivalan Case : Could Tamil Nadu Governor Refer Decision Of State Cabinet To President?Supreme Court Reserves Judgment

A Bench led by Justice L. Nageswara Rao clarified that the judgment so reserved is limited to the issue - whether the Governor could have referred the decision taken by the Council of Ministers of Tamil Nadu to grant early remission to Perarivalan, to the President for his consideration.

On Wednesday, Additional Solicitor General, Mr. K.M. Nataraj argued that under Section 432 of the CrPC, which deals with power to suspend or remit sentence, its sub-clause 7 states that, in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate government to consider pleas of remission. Article 73 of the Constitution dealing with the extent of power of the Union was relied upon to demonstrate that executive powers of the Union extends to the matters with respect to which Parliament has power to make laws. Referring to Article 161, which deals with the power of the Governor to grant remission, he asserted that the power under the provision is limited to offences against laws relating to a matter to which the executive power of the State extends. He argued that though the Indian Penal Code is placed in the concurrent list, it is a law made by the Parliament and hence applying the principles laid down in Articles 246 to 245, in case of repugnancy, the executive power of the Union Government would take primacy. According to him, the repugnancy in the present matter was with respect to who has the power to decide remission plea.

Per-contra, Senior Advocate, Mr. Rakesh Dwidevi, appearing for the State of Tamil Nadu, argued that as per the proviso to Article 73, the executive power of the Union Government would not extend to matters with respect to which the Legislature of the State has also power to make laws, until and unless the same is explicitly mentioned in the Constitution or any Central Law. He submitted that no such saving clause is there either in IPC or CrPC. It was also averred that IPC is an existing law and cannot be said to be a law made by the Parliament. Moreover, it was argued that different provisions of the IPC are covered by entries in different lists of the Schedule VII of the Constitution and the same ought to be considered while determining the extent of executive power of the State.

However, it was emphasised that the main issue is the reference made by the Governor. There are neither any provisions in the Constitution nor any precedent to defend such reference. Mr. Dwivedi was of the opinion that at the most the Governor could have sent the recommendation back to the Cabinet

On 06.09.2018, Perarivalan moved his remission plea. The State Cabinet had made recommendations for his early remission on 09.09.2018. After keeping the application in abeyance for almost 3 years, it appears from the affidavit filed by the Ministry of Home Affairs that the Governor has referred the decision taken by the Council of Ministers of Tamil Nadu to grant him remission to the President for his consideration.

On a previous occasion, the Bench asked the Central Government why can't Perarivalan, who has served almost 36 years (32 years without remission)be released, when the Court has been releasing prisoners who have served over 25 years of sentence. On the last date of hearing it was keen to release him on the basis of the precedent set out by the Apex Court, on the ground of right to equality guaranteed under Article 14 of the Constitution of India. Mr. Nataraj has impelled the Court to decide on the issue of reference before deciding on his release.

Earlier, Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of Perarivalan and Mr. Dwidevi argued against the Governor's reference for the same being in absolute derogation of the federal structure envisaged in the Constitution.

Appearing before the Bench, on Wednesday, Mr. Nataraj submitted, at the outset, that the prayer being sought was beyond the scope of the original matter. Noting that relevant developments took place only when the matter was pending before the Apex Court, Justice Rao asked him to not go into technicalities and argue on the constitutional issue of reference.

Recalling a query raised on the last date of hearing, he reminded Mr. Nataraj -

"We also asked you to clarify your locus standi to defend the Governor. The Governor is the head of State. If at all it should be the State defending him."

Mr. Nataraj sought to distinguish the present case from all other cases where the Governor is represented by the State Government. He argued that when the State Government's decision is in the teeth of the constitutional scheme, then the Governor has the power to refer the matter to the President. Mr. Nataraj submitted -

"The State in all cases should be the voice before this court. In this case the situation is peculiar, the Government has taken a different stand…The decision taken by the State Government is contrary to constitutional scheme, then the Governor is well within his power to refer it to the President."

Justice Gavai enquired, "Can you enlighten us the Constitutional provision which permits this to be done?"

Mr. Nataraj responded -

"Under federal structure, if the State Government usurps our (Centre's) power, then we can point out and say that this should not have been done."

Justice Gavai was concerned that if the said submission is accepted then all the cases wherein remission is sought for the offence of murder, the plea has to be made to the President.

"By that analogy, in every case seeking pardon in murder case the Governor will refer it to the President."

Mr. Nataraj submitted that the Central Government would have the power to decide pardons pertaining to the Indian Penal Code.

Justice Gavai remarked, "So all pardons granted by Governor for offences of murder will be null and void if that is the case."

Referring to the judgment in Union of India v. V. Sriharan @ Murugan And Ors., Mr. Nataraj essentially argued that as per Section 432(7)(a) of the Cr.P.C. when the sentence imposed by the Court is for an offence against any law relating to a matter to which the executive power of the Union Government extends, the Central Government would be the appropriate Government to decide remission plea. In short, when the law under which the sentence was imposed is enacted by the Parliament, the President would be the competent authority to decide remission.

Observing that Mr. Nataraj is relying on the portion of the judgment which deals with Section 432 and considering the fact that in the present case the reference was made under Article 161, Justice Rao asked him -

"Is there a difference in exercise of power in Section 434 and Article 161? The judgment you are reading itself says so. You are reading the portion on Section 434. Read the relevant provisions on Article 161."

Mr. Nataraj submitted that the schemes under the Cr.P.C. and the Constitutions are undoubtedly different.

Justice Rao enquired, "Which list IPC falls in?"

Mr. Nataraj responded, "Concurrent." He further stated that when a subject falls under the ambit of executive power of both the State and Centre, as per Sriharan's case, the primacy would be given to Centre in terms of Article 246 (subject matter of laws made by Centre and State) and Article 254 (repugnancy). The relevant portion is as under -

"Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is coextensive?

[...]

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."

Justice Rao noted that if the submission made by the ASG is accepted then it would indicate that all pardons granted by the Governors with respect to IPC offences are unconstitutional.

"You are saying the power is exclusive to the President. The result of your submission is that over a period of 70-75 years, all pardons granted by the Governor for IPC offences are unconstitutional."

Mr. Gavai reckoned that to substantiate his argument, Mr. Natraj ought to, prima facie, demonstrate that Section 302 IPC (punishment for murder) is exclusively within the domain of the Union legislature. Mr. Nataraj submitted that though it is in the concurrent list, the Indian Penal Code is a law made by the Parliament.

Justice Rao was of the opinion that Sriharan specifically dealt with issues pertaining to Section 432 and Section 433 CrPC and not with respect to constitutional powers of remission. He observed that the said judgment itself notes that the power under Article 71 and 161 of the Constitution are on a 'higher plane'. The relevant portion from Sriharan's case is extracted below:

"Before making an analysis on the question referred for our consideration, certain observations of the Constitution Bench of this Court in Maru Ram (supra) which was stated in the context of the power exercisable under Articles 72 and 161 of the Constitution needs to be noted. Such observations relating to the Constitutional power of the President and Governor, of course with the aid and advice of the Council of Ministers, is on a higher plane and are stated to be 'untouchable' and 'unapproachable'. It was also held that the Constitutional power, as compared to the power exercisable under Sections 432 and 433 looks similar but not the same, in the sense that the statutory power under Sections 432 and 433 is different in source, substance and strength and it is not as that of the Constitutional power. Such statement of law was made by the Constitution Bench to hold that notwithstanding Sections 433A which provides for minimum of 14 years incarnation for a lifer to get the benefit of remission, etc., the President and the Governor can continue to exercise the power of the Constitution and release without the requirement of the minimum period of imprisonment."

Justice Rao asked Mr. Nataraj to make submissions regarding the issue of reference raised by the Counsels appearing for the State Government and A.G. Perarivalan. He asked Mr. Nataraj to read the relevant portion of the judgment in Maru Ram v. Union of India, relied upon by the State Government to make good their submissions, that the Governor could not have independently decided to refer the matter to the President.

"... The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Art. 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice…So, we agree, even without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers…"

Mr. Natraj referred to Articles 72, 73, 161 and 162 of the Constitution which reads as under -

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…

Article 73

73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

Article 161

161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—The Governor of a State 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 against any law relating to a matter to which the executive power of the State extends.

Article 162

162. Extent of executive power of State.—Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.

He submitted that when both the State and Union have executive power to decide remission, applying the principles of Article 246 to 254, the State Legislature would get primacy only if the concerned law had received assent of the President.

Justice Rao noted that the proviso to the main provision of Article 73, which delineates the extent of executive power of the Union states -

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

He was of the view that a plain reading of the proviso would suggest that until and unless it is specifically mentioned in the Constitution or any other Central law, the executive power of the Union Government cannot extend to subjects with respect to which the legislature of the State also has power to make laws.

Mr. Nataraj reiterated that when the Union Government has power under Article 73 to make a particular law, then it would get primacy over the law to be made by the Governor under Article 162.

Not quite convinced with the argument, Justice Rao stated that ASG's submission was contrary to bare provision. He also reckoned that the question of primacy would only arise when there is repugnancy. Mr. Nataraj submitted that the repugnancy was with respect to the exercise of power to grant remission.

Placing reliance on Maru Ram (supra), Justice Gavai noted that there is no repugnancy as both the Governor and President can exercise the power. He added that -

"If your contention is to be accepted then Article 161 is a dead letter…Then in every case of murder only the President will have power"

Justice Rao remarked that the Governor in the reference order has not mentioned anything pertaining to the incompetence of the State, which has been so vehemently argued by the ASG.

"All this is your making, there is nothing in the Governor's endorsement that the State doesn't have power."

"Governor says who is the competent authority", Mr. Nataraj submitted.

Mr. Dwivedi representing the State of Tamil Nadu, averred that the act of the Governor to independently take a call to refer the recommendation of the State Cabinet to the President is in derogation of the law laid down in Maru Ram (supra), that the Governor is bound by the decision of the State Government. It was further asserted that even if he was of the opinion that the State Government had exceeded its authority, he could have sent the recommendation back. If the State Government would not have changed its stand ever after that, the Governor was bound to accept the decision of the Government. If the State had indeed acted beyond its domain, the same could have been challenged before a Constitutional Court.

The Bench noted that the Governor could have made a note and sent it back to the Government, instead of referring it to the President.

"We could have understood, if the Governor would have made a note, but reference is a problem."

Mr. Dwivedi argued that contrary to the claim of the ASG, the Indian Penal Code is not a law made by Parliament. He submitted that it is an existing law. Subsequent amendments were, no doubt, made to it by the Parliament. But, the same would not make it an enactment of the Parliament. He referred to G.V. Ramanaiah v. Superintendent Of Central Jail to argue that different provisions of the Indian Penal Code pertain to entries in different lists of Schedule VII of the Constitution.

"...The Indian Penal Code is a compilation of penal laws, providing for offences relating to a variety of matters, which are referable to the various Entries in the different Lists of the 7th Schedule of the Constitution. Many of the offences in the Penal Code relate, to matters, which are specifically covered by the Entries in the Union List. Examples of such offences are to be found in Chapter VII, offences relating to the Army, Navy and Air Force; Chapter IX-A, offences relating to Elections; Chapter XII, offences relating to coin and Government stamps; Chapter XIII, offences relating to Weights and Measures; and the bunch of sections 489-A to 489-E, offences relating to Currency-Notes and Bank-Notes, which are referable to Entries Nos. 4, 72, 36, 50 and 36, respectively, of List I of the Seventh Schedule…"

Referring to the proviso to Article 73, he contended that the CrPC does not 'save' executive power in favour of the Union Government. He added that if the Parliament wants the executive power pertaining to a law to be discharged exclusively by the Centre, then the same has to be specifically saved in the Central statute.

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