SC orders release of Rajiv killing convict

SC orders release of Rajiv killing convict
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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 told reporters that it is condemnable and very unfortunate that the assassin of a former prime minister 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. The outcome in this case means that the others will also benefit similarly as the Tamil Nadu 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-and-a-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.”

Faulting the delay shown by the governor, the bench said, “Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence.”

On the governor’s decision to refer the matter to the President, the top court felt, such a reference was “without any constitutional backing” and is “inimical to the scheme of our Constitution.” It said, “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. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India.”

The Court referred to an earlier Constitution Bench decision in Maru Ram case (1980) which said, “The Governor is but a shorthand expression for the State Government.” The order affirmed that “advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161” and said that “inexplicable delay in exercise of such power not attributable to the prisoner” will be subject to judicial review, especially when a decision to release the prisoner has been taken by the State Cabinet.

The Court was conscious of the fact that the Governor enjoyed immunity for his actions. However, it said, “Non-exercise of the power under Article 161 is not immune from judicial review.”

It is relevant to point out, the bench said, that “it was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission to the President.” Till then, it remained pending for almost two-and-a-half years since the recommendation from the state cabinet was made on September 9, 2018.

The position of the Tamil Nadu government, represented in the proceedings by senior advocate Rakesh Dwivedi was vindicated; the state submitted that the governor was bound by the aid and advice of the state council of ministers for deciding a plea under Article 161 and he was wholly unjustified in sending the matter to the President. Dwivedi submitted that in case of any disagreement, the matter had to be sent back to the state for reconsideration. The state argued that the decision of the governor opened a channel for Centre to step into state’s affairs destroying the federal setup envisaged by the Constitution.

Additional solicitor general (ASG) KM Nataraj who argued for Centre pointed out that since Perarivalan was punished for the crime of murder (IPC Section 302), which was a law made by Parliament, the competent authority to decide on his remission was the President. He relied on a Constitution Bench decision in Union of India v Sriharan (2015) where the Court held 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.

Deciding on this issue, the SC in its 29-page judgment said, “The understanding sought to be attributed to the judgment of this Court in Sriharan with respect to the Union Government having the power to remit / commute sentences imposed under Section 302, IPC is incorrect, as no express executive power has been conferred on the Centre either under the Constitution or law made by the Parliament in relation to Section 302.” In the absence of such specific conferment, it is the executive power of the State that extends with respect to IPC Section 302, the Court held.

Perarivalan’s lawyer, senior advocate Gopal Sankarnarayanan argued that if such an argument by Centre is to be accepted it would upset all decisions of pardon granted by governor over the past seven decades.

This is the second reprieve granted to Perarivalan by the top court. In 2014, he benefitted from a decision rendered by the top court that inordinate delay in deciding mercy petitions would lead to commutation of death sentence. Accordingly, the top court commuted his punishment to life term.

Perarivalan was among seven persons convicted by a Special TADA [Terrorist and Disruptive Activities (Prevention) Act] court for being part of the conspiracy to assassinate former PM Rajiv Gandhi on May 21, 1991. In May 1999, the Supreme Court upheld his death sentence and his conviction under IPC. The conviction and sentence under the TADA were set aside.

Perarivalan filed a mercy petition before the Tamil Nadu governor that was rejected in October 1999. He approached the Madras high court against the dismissal following which governor was asked to reconsider the decision. It was rejected again on April 25, 2000. He then filed a mercy petition to the President under Article 72 of the Constitution, which also got rejected in August 2011. He again approached the Madras high court against the rejection order by President. This petition was transferred to the Supreme Court which led to the February 18, 2014 decision where his death sentence was commuted to life.

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