Rajiv Gandhi killing: SC orders release of convict

Ending the over 31-year-old incarceration of Rajiv Gandhi assassination convict AG Perarivalan, the Supreme Court on Wednesday ordered his release taking into account his good conduct in prison, medical condition, educational qualifications acquired in jail and the long pendency of his mercy plea since December 2015.

A bench of justices L Nageswara Rao and BR Gavai ruled, “Seeing his satisfactory conduct in jail, medical records, educational qualifications achieved in jail, and pendency of his mercy petition filed under Article 161 before TN Governor since December 2015…in exercise of powers under Article 142, we direct the petitioner to be set free.”

The court further held that the decision of Governor to refer the mercy plea of Perarivalan to President on January 25 last year had no constitutional backing. “The Governor is bound by aid and advice of state council of ministers,” the bench said, adding, “the decision to refer the plea to President has no constitutional backing as per the SC decision in Maru Ram case (1980), which held that Governor has to abide by aid and advice of state cabinet and if he is not agreeable to the decision, the Governor must send the matter back to the state for reconsideration.

Perarivalan, who was arrested in June 1991, was released on bail by the top court on March 9 this

year, and agreed to examine his petition raising doubts over the correctness of former Tamil Nadu governor Banwarilal Purohit’s decision of 25 January 2021 to recommend his mercy plea to President.

The Governor took the decision considering the fact that Perarivalan was punished for murder ( Section 302 of the Indian Penal Code), which was probed by the Central Bureau of Investigation (CBI), and hence

the competent authority to decide on granting him pardon was the President of India.

This view taken by the Governor and argued by the Centre was questioned by Perarivalan as well as the Tamil Nadu government, which had recommended his release to the Governor in September 2018.

Perarivalan’s lawyer, senior advocate Gopal Shankarnarayanan, argued that the mercy petition was filed under Article 161 of

the Constitution, which deals with Governor’s power to grant pardon and if such an argument is to be accepted it would upset all decisions of pardon granted by Governor over the past seven decades. Perarivalan had filed the mercy plea before the TN governor on 30 December 2015 and he said that for five years, the Governor did not raise any such objection. He had approached the top court in 2016

over the delay to decide on his clemency.

On the other hand, the Tamil Nadu government argued that the Governor’s decision was an assault on the federal setup of the country. Senior advocate Rakesh Dwivedi, who appeared for the state government, said that the Governor was constitutionally bound by the aid and advice of the state council of ministers while deciding on a plea under Article 161. If he disagreed, he had the option of referring the matter for reconsideration to the state government and not involve the President. Dwivedi said that this would create a dangerous precedent as the Governor would refer any matter not of his liking to the President, and thus involve the Centre in the affairs of the state government, which would damage the underlying principle of federalism provided under the Constitution.

The Centre, represented by additional solicitor general KM Nataraj, justified the reference order of the Governor by citing a Constitution Bench decision in Union of India vs Sriharan (2015), where the court observed that under Section 432 of the Code of Criminal Procedure (CrPC), dealing with pardon powers of the state government, the appropriate government will be the Union government.

In that judgment, the majority view held, “…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.”

Nataraj said that the same logic would apply to exercise of constitutional power of pardon by Governor under Article 161 in referring the matter to President as the case against Perarivalan involved a law passed by Parliament.

The Court questioned the Centre for speaking on behalf of the Governor as it felt that the state government is supposed to speak for the Governor, who is the constitutional head of a state. The bench was also not convinced by the Centre’s arguments as it noted that the judgment in the Sriharan case dealt with the pardoning power under the Section 432 of the CrPC, which is distinct from the constitutional pardon under Article 161 (by Governor) and Article 72 (by President).

“If your argument is accepted, it will mean that all pardons granted by Governor over the past 75 years under Section 302 of the IPC were unconstitutional. Article 161 will become a dead letter as every pardon under the IPC will have to go to the President,” the Court observed on May 11 while reserving order in the matter. It held that non-exercise of power or inextricable delay in exercise of power is subject to judicial review. It even held that no express power is conferred to Union for prosecution under Section 302, and hence found no force in Centre’s submission that President alone will have power to pardon in Perarivalan case.

Perarivalan was among seven persons convicted by a special Terrorist and Disruptive Activities (Prevention) Act court for being part of the conspiracy to assassinate former prime minister Rajiv Gandhi on 21 May 1991. His role was limited to supplying the battery used in the bomb that led to the tragic incident. His death sentence was commuted to life by the Supreme Court in February 2014.