The Supreme Court’s Judgment on Pardoning Powers of the Governor – Explained, pointwise

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Introduction

The Suprme Court recently ordered the release of A G Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case. The Supreme Court exercised its special powers under the Article 142 of the Constitution to order the release. The order came 24 years after Perarivalan was sentenced to death in the case by a lower court. The case holds immense significance as it has given more clarity on the scope of the pardoning powers of the Governor under Article 161 of the Indian Constitution.

What is the background of the issue?

Perarivalan was arrested in June 1991, weeks after former Prime Minister Rajiv Gandhi was killed in a suicide bomb attack at Sriperumbudur in Tamil Nadu on May 21, 1991. Perarivalan was sentenced to death by a lower court in January 1998 after being convicted under IPC section 302 (murder) read with section 120B (criminal conspiracy). The sentence was upheld by the Supreme Court in May 1999.

In 2014, the Supreme Court commuted the death sentence to life imprisonment citing long pendency of the mercy petition.

What was the case before the Supreme Court?

Subsequent to commutation, Perarivalan had submitted a mercy petition to the Governor of Tamil Nadu in 2015 seeking release under Article 161 of the Constitution. After failing to receive a response, he moved the Supreme Court.

In September 2018, the Tamil Nadu Cabinet recommended the release of all seven convicts, including Perarivalan. The Governor, however, didn’t act on the recommendation. In July 2020, Madras High Court reminded the Governor that the Constitution had not prescribed a time limit for the Governor to make a decision only “because of the faith and trust attached to the Constitutional post.” The HC warned that it might be forced to intervene.

In February 2021, the Governor’s office forwarded the State Government’s recommendation to the President. Since then, the issue has been pending with the President.

The State government had granted parole to Perarivalan in May 2021 which was subsequently extended on “health grounds”. The Supreme Court granted him bail on March 9, 2022.

The Union Government has contended that the only President had the exclusive power to grant remission in cases pertaining to Section 302 (murder) of the IPC.

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About Article 161:

  • Under this, the Governor is empowered to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law which is under the executive power of the State. 
  • Exceptions:  
    • The Governor cannot pardon the death sentence (the President has the power to do so). 
    • The Governor cannot grant pardon, reprieve, respite, suspension, remission, or commutation in respect to punishment or sentence by a court-martial.
What did the Supreme Court rule?

Use of Power Under Article 142: The Supreme Court used its special power under Article 142 of the Constitution and directed that the appellant be deemed to have served the sentence in connection with the crime. The Court granted him liberty with immediate effect.

Governor’s Referral to the President: The Court also disapproved the action of the Governor of Tamil Nadu of sending the recommendation of the State Cabinet (to remit the remaining part of the sentence) to the President. The SC deemed it unconstitutional. The Court said where both the Union and State Governments had the power to make laws, the Union Government’s power will take precedence. However, precedence will be given only when “executive power had been expressly conferred on the Union under the Constitution or the law made by the Parliament, failing which the executive power of the State remained intact”.

The Court refused to remand the matter back to the Governor for reconsideration. The main reasons behind such a stance were: (a) Appellant’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole; (b) Chronic ailments from his medical records, his educational qualifications acquired during incarceration; (c) The pendency of his petition under Article 161 for two-and-a-half years even after the recommendation of the remission by the State Cabinet.

About Article 142:

  • The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
  • Any decree so passed or order so made shall be enforceable throughout the territory of India.

Scope of Article 142:

  • Prem Chand Garg v. Excise Commissioner, U.P., Allahabad (1962): An order passed under Article 142 must not only be consistent with the fundamental rights guaranteed by the Constitution, but it also cannot be inconsistent with the substantive provisions of the relevant statutory laws.
  • A.R. Antulay v. R.S. Nayak (1988): The majority opinion upheld the court’s opinion in ‘Prem Chand Garg’.
  • Union Carbide Corporation v. Union of India (1991): The power under Article 142 is at an entirely different level and of a different quality. Prohibitions on limitations on provisions contained in ordinary laws cannot act as prohibitions or limitations on the Constitutional powers under Article 142. 
  • Supreme Court Bar Association v. Union of India (1998): The Court ruled that its powers under Article 142 were supplementary in nature, and could not supplant substantive law and “build a new edifice where none existed earlier”.
What is the significance of the Judgment?

First, the decision will serve as a reminder that although no time limit has been assigned by the Constitution for the Governor to decide on pardon under Article 161, the Court can intervene using their power under Article 142 to ensure complete justice.

Second, the decision shows the enhanced scope of judicial review over the pardoning powers of the Governor under Article 161. It clarified that non-exercise of the power under Article 161 is not immune from judicial review.

Third, the decision will prevent the Union Government from undermining the power of State government and help in the maintenance of federal equilibrium in the country. 

Fourth, It will induce the Governors to act in a non partisan way in consonance with the spirit of Constitutional Morality rather than showing favoritism. 

Conclusion

The Court’s decision is yet another instance to show why the Supreme court is referred to as the custodian of constitution. The decision will serve as a reminder for all other constitutional authorities (including Union, States and Governor) that they must act as per the mandate of the Constitution.

Source: Indian Express, Indian Express, The Hindu

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