Light at the end of the tunnel
In deciding to free AG Perarivalan, SC puts the individual at the core of its decision-making
The Supreme Court (SC)’S decision to free AG Perarivalan, one of the life-term convicts in the 1991 Rajiv Gandhi assassination case, is a stern reminder to the president and governors that the constitutional scheme binds them to the aid and advice of the elected government in the exercise of their powers. Releasing Perarivalan after 31 years of incarceration, the top court was emphatic that the will of an elected government is supreme in matters enumerated under the State List, which include, among others, remission and premature release of a convict.
In holding so, the SC referred to a Constitution bench judgment from 1980, which held that the president is symbolic, the central government is the reality; the governor is the formal head and sole repository of the executive power, but is incapable of acting on those powers except on, and according to, the advice of his council of ministers. Thus, the court ruled, the Tamil Nadu governor’s action of consulting the President despite the state government’s mandate in favour of the early release of Mr Perarivalan lacked constitutional backing. In its verdict, the court also drew attention to the “lakshman rekha” (inviolable line) of powers between the Centre and states, asserting that no express authority was conferred on the central government when a prosecution is carried out under the Indian Penal Code, and not under any other law such as the National Investigation Agency (NIA) Act or the Unlawful Activities Prevention Act (UAPA), which are prosecuted exclusively by central investigation agencies.
“Non-exercise of power or inextricable delay in exercise of power” by a constitutional functionary further invited the censure of the top court, which reiterated that inordinate delays in taking a call on a prisoner’s plea make the matters amenable to judicial review because there is a person on the other side waiting for the light at the end of the tunnel. Keeping the individual at the core of its decisionmaking, the SC underlined that every person, including a prisoner, is entitled to due process and when constitutional liberties are imperilled, judges cannot be non-aligned.