In Perarivalan’s case, the constitutional battle between governor and government 

News: Recently, the Supreme Court of India exercised its power under Article 142  of the Constitution and ordered the release of A.G. Perarivalan, a convict in the Rajiv Gandhi Assassination Case.  

This has put an end to the battle between the Raj Bhavan and Secretariat that has lasted more than two decades.  

What is the legal position on mercy pleas? 

The Article 72 of the Constitution of India allows the convicts to file a mercy plea to the President. However, the constitution has not stipulated a time period for the consideration of the mercy pleas. 

The Article 161 allows the convicts to file mercy pleas to the Governor. The Madras HC has ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers. 

Section 433A of the Criminal Procedure Code (CPC) mentions that the prisoners cannot be released from prison unless they had served a minimum sentence of 14 years in prison.  

The court opined that a life sentence means imprisonment for the remainder of one’s life. The convicts can apply for remission under Sec.432, CrPC. This can be done in cases where death sentences are commuted. 

Background of the present case 

The assailants were tried under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). Perarivalan was given the death sentence by the Special Court and was confirmed by the SC in 1998. 

The convict petitioned the Tamil Nadu Governor for mercy under Article 161. The Governor had dismissed the petitions.  

The Convicts also filed mercy plea to the President of India. However, Pratibha Patil, The President of India rejected the mercy pleas of the convicts after a delay of 11 years 

Later, when the convicts were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant. Further, the case was transferred to the Supreme Court.  

The SC ruled that the president’s non-consideration of the mercy plea was not within a reasonable time. The president took 11years. Therefore, their death penalty was commuted to the sentence of life imprisonment. 

Later on, all the convicts applied for remission from the governor. The state cabinet also advised the governor to grant pardon. After inordinate delay, the convicts moved to the court. The court held that “the Governor cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long”. The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA).  

Later, the T N Assembly passed a resolution granting mercy to the seven accused in 2018. The governor did not take any action. The convict reached the Supreme Court where the governor stated that the matter was to be dealt with by the President. This matter has been dealt with in the present case. 

What has been ruled in the present case? 

The court ruled that the authority to grant pardon is with the governor and he is bound by the advice of the state government.  

The court held that the action of the governor in delaying the matter for more than 2.5 years was unacceptable.  

Th court stated that “a barbaric crime does not have to be visited with a barbaric penalty”. India’s penal system is undoubtedly reformatory and not retributive.  

Way Forward 

The Office of the Governor has often been manipulated by the government at the centre. This has perverted the constitutional scheme.  The governor’s office should not be manipulated for narrow political considerations. The Governor should work based on his wisdom. 

Source: The post is based on an article “In Perarivalan’s case, the constitutional battle between governor and government” published in the Indian Express on 20th May 2022.