SC orders release of Rajiv killing convict
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.