Summary
A.G. Perarivalan, convicted in the 1991 assassination of Rajiv Gandhi, petitioned the Governor of Tamil Nadu under Article 161 in 2015; the State Cabinet recommended his release on 09.09.2018, but the Governor took no decision for two and a half years and on 25.01.2021 forwarded the recommendation to the President. The Supreme Court held that the Governor is bound by the State Cabinet's advice under Article 161 and has no power to refer its recommendation to the President; that the Union's reading of Sriharan, that only the Centre can remit sentences under Section 302 IPC, is incorrect since no executive power over that offence has been expressly conferred on the Union; and, given 32 years' incarceration, good conduct, education in prison, ill health and the prolonged pendency, directed under Article 142 that he be deemed to have served his sentence and set at liberty.
Issues
- Whether the Governor, acting under Article 161 of the Constitution, is bound by the recommendation of the State Council of Ministers for remission of a sentence, and whether he may instead refer the recommendation to the President of India.
- Whether, under Union of India v. Sriharan, the Union Government alone is the 'appropriate Government' competent to remit or commute a sentence for an offence under Section 302 IPC.
- Whether inexplicable delay or non-exercise of the power under Article 161 is subject to judicial review, and whether the Court should itself order the convict's release under Article 142 rather than remand the matter to the Governor.
Provisions considered
- Articles 161, 162 and 163; Articles 72 and 73(1) proviso; Article 142, Constitution of IndiaThe Governor is the formal head who exercises the power of pardon and remission under Article 161 only on the aid and advice of the Council of Ministers (Samsher Singh; Maru Ram — 'the Governor is but a shorthand expression for the State Government'); no provision empowers him to refer the Cabinet's recommendation to the President, and the reference of 25.01.2021 was without constitutional backing. Under the proviso to Article 73(1) the Union's executive power extends to a concurrent subject only if expressly conferred by the Constitution or parliamentary law, which has not been done for Section 302 IPC. Article 142 was invoked to deem the sentence served. (¶¶ 13, 14, 15, 16, 17, 18, 19, 25, 26, 28, 29)
- Sections 432(7), 433 and 435, Code of Criminal Procedure, 1973Under Section 432(7) the Central Government is the appropriate Government only where the sentence is for an offence relating to a matter to which the Union's executive power extends; for murder under Section 302 IPC, absent express conferment of executive power on the Union, the State Government is the appropriate Government, as both opinions in Sriharan recognised; the Union's contrary reading of Sriharan was rejected. (¶¶ 2, 23, 24, 25, 26, 29)
Held
- Under the Cabinet system embodied in the Constitution the Governor exercises all his powers on the aid and advice of the Council of Ministers save where the Constitution expressly requires him to act in his discretion; in matters of commutation and remission under Article 161 the Cabinet's advice is binding and the Governor cannot sit in judgment over it. No constitutional provision empowers the Governor to refer the State Cabinet's recommendation to the President; the reference made two and a half years after the recommendation of 09.09.2018, and only after this Court began enquiring into the delay, was contrary to the constitutional scheme and inimical to federalism. (¶¶ 13, 14, 15, 16, 17, 18, 19, 29)
- Though the Governor enjoys personal immunity, orders under Article 161 and the non-exercise of the power are subject to judicial review (Epuru Sudhakar); as such petitions concern personal liberty, inexplicable delay not attributable to the prisoner is inexcusable, especially where the State Cabinet has decided to release him. (¶¶ 20, 29)
- M.P. Special Police Establishment, which permitted the Governor to act in his discretion on sanction to prosecute Ministers where the Cabinet's refusal was vitiated by bias or non-consideration of relevant material, does not apply: no case was made out that the Tamil Nadu Cabinet ignored relevant factors or acted on extraneous considerations, and the Governor here took no decision at all but merely forwarded the recommendation. (¶¶ 21, 22, 29)
- Sriharan does not hold that only the President may remit sentences under Section 302 IPC: the appropriate Government depends on whether executive power over the offence has been expressly conferred on the Union by the Constitution or a law of Parliament, failing which the State's executive power extends to it, whether Section 302 falls under Entry 1 of List II or Entry 1 of List III; since no such conferment exists for Section 302, the State Government is the appropriate Government. (¶¶ 23, 24, 25, 26, 29)
- The appellant, arrested at 19, has been incarcerated for 32 years including 16 on death row and 29 in solitary confinement, has an unblemished jail and parole record, suffers chronic ailments and has completed school, undergraduate and postgraduate degrees and other courses; his Article 161 petition remained pending for two and a half years after the Cabinet's recommendation and over a year since the reference. It is not appropriate to remand the matter to the Governor; in the exceptional circumstances and absent any disqualification, under Article 142 he is deemed to have served his sentence and is set at liberty, his bail bonds cancelled. (¶¶ 8, 27, 28, 29)
Result
Appeals disposed of; in exercise of power under Article 142 the appellant is deemed to have served his sentence in Crime No. 329 of 1991 (the Rajiv Gandhi assassination case) and set at liberty forthwith, his bail bonds cancelled; the Governor's reference of 25.01.2021 of the Tamil Nadu Cabinet's remission recommendation to the President held without constitutional backing.