[BREAKING] Rajiv Gandhi assassination: Supreme Court orders release of AG Perarivalan after Governor's delay to decide pardon plea

The Supreme Court on Wednesday ordered the release of AG Perarivalan, the convict in the assassination of former Prime Minister Rajiv Gandhi [AG Perarivalan Vs State of Tamil Nadu]..A bench of Justices L Nageswara Rao, BR Gavai and AS Bopanna exercised its powers under Article 142 of the Constitution to order Perarivalan's release after noting that there was considerable delay by the Governor of Tamil Nadu in deciding the convict's plea for remission under Article 161. "In exercise of our power under Article 142 we direct that the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The Appellant, who is already on bail, is set at liberty forthwith," the judgment said. .The main issue before the top court was regarding the power of the Governor to refer such petitions to the President of India when the State Cabinet had already given its recommendation for remission or pardon.The Governor had refused to take a call on Perarivalan's plea under Article 161 of the Constitution prompting the convict to approach the Court. The Supreme Court held that the exercise of powers by Governor under Article 161 cannot suffer from inexplicable delay and it can be subjected to judicial review."As per Maru Ram judgment, the Governor is a mere handle. We are not impressed to remand back the matter to the Governor," the top court made it clear. .Pertinently, the top court held that the advice of the State Cabinet is binding on the Governor in matters relating to commutation/ remission of sentences under Article 161."No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India," the Court held..The Court broadly held the following: - Advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution;- Non-exercise of the power by the Governor under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by Supreme Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect;- Submission that Union Government has power to remit / commute sentences imposed under Section 302 of Indian Penal Code is incorrect, as no express executive power has been conferred on the Central government either under the Constitution or law made by the parliament in relation to Section 302..AG Perarivalan was convicted and sentenced to death when he was 19 for aiding in making the bomb responsible for the assassination of Rajiv Gandhi.The top court had, in 2014, commuted his death sentence to life imprisonment on the ground of delay in deciding mercy petitions.Later he applied to the Governor for pardon and remission of his sentence on December 30, 2015..With no decision forthcoming from the Governor, Perarivalan moved the Supreme Court almost three years later, in September 2018. The Supreme Court had then asked the Governor to decide the pardon plea as he “deemed fit”. Three days later, the Tamil Nadu Cabinet recommended to the Governor, to remit Perarivalan’s sentence and release him forthwith.However, the Governor refused to take a call on the same stating that the President is the competent authority when it comes to remission of sentence of convicts and had referred it to the President.The Central Bureau of Investigation (CBI) also told the Supreme Court in October 2020 that the Governor of Tamil Nadu is the competent authority to decide on request for remission.But the Governor had maintained that the President is the competent authority to take a call on remission..The Supreme Court by way of today's judgment rejected this argument and held that petitions under Article 161 pertain to the liberty of individuals and inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner. The Court said that Governor ought not to have sent the recommendation made by the State Cabinet to the President of India and such action was contrary to the constitutional scheme.Even though Governor has immunity under the Constitution, Supreme Court has the power of judicial review of orders of the Governor under Article 161, the judgment added."Non-exercise of the power under Article 161 is not immune from judicial review, as held by this Court," the verdict said."Taking into account the Appellant’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition under Article 161 for two and a half years after the recommendation of the State Cabinet, we do not consider it fit to remand the matter for the Governor’s consideration," the Court ordered while setting Perarivalan free. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.