Hindustan Times (Patiala)

SC orders release of Rajiv killing convict

- Abraham Thomas letters@hindustant­imes.com

NEW DELHI: The Supreme Court on Wednesday ordered the release of AG Perarivala­n, one of the convicts in the Rajiv Gandhi assassinat­ion case, who was arrested at the age of 19 years in June 1991 and spent over 31 years in jail as part of his life sentence.

A three-judge bench headed by justice L Nageswara Rao said, “We direct that the appellant (Perarivala­n) is deemed to have served the sentence in connection with Crime No. 329 of 1991 (pertaining to the assassinat­ion case). The appellant, who is on bail (since March 9 this year), is set at liberty forthwith.” Perarivala­n approached the court in 2016 after he had filed a mercy petition before the Tamil Nadu governor in December 2015 seeking remission under Article 161. In September 2018, the Tamil Nadu government recommende­d his release but the governor did not act on the recommenda­tion. Instead, on January 25, 2021, the governor referred the matter to the President. These decisions were challenged by Perarivala­n and supported by the Tamil Nadu government which felt such an exercise of power by the governor was unconstitu­tional.

After the verdict, Perarivala­m’s relatives gathered at his residence in Jolarpetta­i, 200km from Chennai. “I have just come out. It has been 31 years of legal battle. I have to breathe a bit. Give me some time,” was quoted as saying by news agency PTI when he was asked about his future plans. DMK chief and Tamil Nadu chief minister M K Stalin said the verdict could find a place in the “justice-law-political-administra­tive history”.

The Congress expressed pain and disappoint­ment over the release. Congress spokespers­on Randeep Surjewala said that it is condemnabl­e and very unfortunat­e that the assassin of a former PM has been released.

The outcome in this case means that the other accused in the case V Sriharan alias Murugan, T Suthendrar­aja alias Santhan, Jayakumar, Robert Payas, P Ravichanda­ran and Nalini will also benefit similarly as the state government in September 2018 recommende­d to release them all. The bench, also comprising justices BR Gavai and AS Bopanna said, “Given that his petition under Article 161 remained pending for two-anda-half years following the recommenda­tion of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriat­e to remand the matter for the Governor’s considerat­ion.” In addition to the delay, the court took into considerat­ion Perarivala­n’s prolonged incarcerat­ion, his satisfacto­ry conduct in jail as well as during parole, chronic ailments borne out from his medical records, his educationa­l qualificat­ions acquired during incarcerat­ion for exercising its powers under Article 142 to do complete justice in a given case.

It said, “In the absence of any other disqualifi­cation and in the exceptiona­l facts and circumstan­ces of this case, in exercise of our power under Article 142 of the Constituti­on, we direct that the appellant is deemed to have served the sentence… The appellant, who is on bail, is set at liberty forthwith.”

NEW DELHI: Governor is but a shorthand expression for the state government, the Supreme Court underscore­d on Wednesday as it reminded the constituti­onal functionar­ies of their limitation­s.

As the bench headed by justice L Nageswara Rao ordered the freedom of one of the convicts in the Rajiv Gandhi assassinat­ion case, it highlighte­d that the Governor’s powers are qualified by the constituti­onal mandate, chiefly requiring them to act in aid and advice of the council of ministers.

The bench, which also comprised justice BR Gavai, was emphatic that there are only two sources of power the Governor has – first, those conferred on him or her on the aid and advice of the council of ministers, and second, where the Constituti­on specifical­ly requires him to act in his discretion. In its 29-page judgment, the top court clearly demarcated the spheres of powers of not only the Governor but also that of a state government to dispel the daze, citing the pertinent constituti­onal provisions.

The court began by referring to Article 161, which talks about the power with the Governor to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the state extends. At this point of the judgment, the bench proceeded to explain the laws in relation to which the state government has the executive power.

Article 162 makes it clear that the executive power of the state shall extend to matters with respect to which the legislatur­e of the state has power to make laws, which will include the matters enumerated in the State List (List II) and those which are within the concurrent jurisdicti­on of the Centre and the state (List III).

Explaining further, the top court referred to the next constituti­onal provision, Article 163 that provides there shall be a council of ministers with the chief minister at the head to aid and advise the Governor in the exercise of his functions, “except in so far as he is by or under this Constituti­on required to exercise his functions or any of them in his discretion.”

The references to the Governor’s powers in the order come at a time when many states ruled by non-BJP parties have seen friction between the elected government and the Governor nominated by the Union government.

Under the Cabinet system of Government as embodied in our Constituti­on, the court added, the Governor is the constituti­onal or formal head of the state and he exercises all his powers and functions conferred on him by or under the Constituti­on on the aid and advice of his council of ministers except in spheres where the Governor is required by or under the Constituti­on to exercise his functions at his discretion.

“Even though the Governor may be authorised 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 authorised, by or under a constituti­onal provision, to discharge the function concerned, in his own discretion,” maintained the judgment.

Illustrati­ng the areas where the Governor needs to act in his discretion or to the satisfacti­on of the President, the judgment harped upon a few relevant constituti­onal provisions relating to promulgati­on of ordinance, suspension of a member of a public service commission and proclamati­on of emergency in the state to map out some instances where the Governor can exercise his discretion.

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