New Delhi: The Supreme Court Wednesday invoked Article 142 of the Constitution, which grants it extraordinary powers for “doing complete justice in any cause or matter pending before it”, and released AG Perarivalan, a convict in former prime minister Rajiv Gandhi’s assassination case.
A bench of justices L.N. Rao and B.R. Gavai took into consideration Perarivalan’s prolonged period of incarceration to set him free. Perarivalan spent 29 years of his 32 years of jail in solitary confinement until the Supreme Court gave him bail in March 2022. Out of his time in prison, he spent 16 years as a death row convict until the court commuted his sentence to life imprisonment in 2014.
Rajiv Gandhi was assassinated at a rally in Sriperumbudur, Tamil Nadu, on 21 May, 1991, in a suicide bombing.
Only 19 years old at the time, Perarivalan was arrested on 11 June, 1991. On 28 January, 1998, 26 people, including Perarivalan and fellow accused Nalini, were sentenced to death. The Supreme Court upheld the death sentence of four people — Murugan, Santhan, Perarivalan, and Nalini — on 11 May, 1999.
Wednesday, the court also took note that Perarivalan had moved his clemency petition under Article 161 before the Tamil Nadu Governor in 2015 and that the state cabinet had in September 2018 advised the head of the state to accept it.
However, despite the council of ministers’ “binding” advice, the Governor had chosen to forward the clemency petition to the President of India — a decision that the top court said was without constitutional backing.
“Such action is contrary to the constitutional scheme elaborated above,” the court said in its order.
It went on to hold that the Tamil Nadu Council of Ministers’ advice given to the Governor was binding on him under Article 161 (which deals with Governor’s clemency power) of the Constitution. The inordinate delay without an explanation in deciding his mercy plea as well as the Tamil Nadu Governor’s reluctance to take a call on it prompted the top court to invoke its special powers under Article 142.
The bench said that given that the Governor sat on Perarivalan’s pardon petition for two years before sending it to the President, it would not be appropriate to remand the matter back to him.
“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,” the court said.
In doing so, the court also rejected the Centre’s argument that the President, and not the Governor, had the power to pardon in a murder case.
Twists and turns
The Supreme Court’s Wednesday order comes in the backdrop of a seven-year-old long court battle that witnessed several twists and turns, with a former CBI cop filing an affidavit in the top court swearing Perarivalan’s innocence and the Modi government changing its stand on who was authorised to pardon him — the President or the Governor.
One of the seven convicts serving a life sentence in connection with the assassination, Perarivalan was 19 when he was arrested for his alleged involvement in the murder, with the agencies alleging he procured batteries used to build the bomb that killed Rajiv Gandhi.
Perarivalan was sentenced to death for the crime, but in February 2014 the top court commuted it to life. Meanwhile, the probe to unearth the larger conspiracy behind the assassination was earmarked to the Multi-Disciplinary Monitoring Agency (MDMA).
In his defence, Perarivalan maintained that he had had no knowledge about the alleged use of the nine-volt batteries that he had supplied.
Perarivalan took steps to secure his release in December 2015 when he moved his clemency petition before the Governor. Simultaneously, he also filed an application in the designated TADA Court Chennai asking for effective monitoring of the pending investigation of the assassination.
Upon dismissal of this application, Perarivalan approached the Madras High Court, which in March 2015 dismissed it with an opinion that the applicant should approach the apex court.
In the Supreme Court, Perarivalan sought suspension of his sentence until the MDMA completed its investigation.
Adding another twist to the ongoing proceedings in the Supreme Court, a former CBI officer associated with the murder probe admitted to having omitted certain crucial facts while recording Perarivalan’s confession. The officer, V. Thiagarajan had said in his statement — recorded under the now-repealed Terrorist and Disruptive Activities Prevention Act (TADA) — that Perarivalan had expressly stated he was unaware of what purpose the batteries would be used for.
But the top court did not pay much heed to Thiagarajan’s affidavit, instead preferring to hear Perarivalan on his mercy plea and wanting to know the status of his clemency petition pending before the Governor. This led the Tamil Nadu cabinet to recommend his release on 9 September, 2018.
In September 2020 the Madras High Court granted parole to Perarivalan while the top court was deliberating on the status of his mercy plea. During the parole hearing, the HC was informed that the Governor had not taken a decision on Perarivalan’s clemency petition as the final report of the MDMA was awaited.
Change in Centre’s stand, Governor stalls
Proceedings in the Supreme Court were delayed due to a change in the Centre’s stand. Initially, the central government had contended that it had not received any request from the Governor for the MDMA’s report and that the clemency plea could be decided on its merits.
But in February 2021, an affidavit was filed in SC, informing it that the Governor had in January 2021 forwarded the pardon petition to the President and that the court must wait for the latter’s decision.
The Centre’s sudden volte-face was strongly opposed by both Tamil Nadu and Perarivalan.
In March this year, considering Perarivalan’s good conduct and taking into account the educational qualifications he had acquired during his more than three decades of incarceration, the top court released him on bail.
The court elaborated on the powers outlined in the Constitution to pardon life convicts and held that held though the “Governor occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government”.
The satisfaction, required under the Constitution in the case of mercy petition, is not the Governor’s personal satisfaction, but “is satisfaction in the Constitutional sense under the cabinet system of governance,” the court explained.
In view of its past judgements, the court held that the advice of the state cabinet was binding on the Governor in matters relating to commutation/remission of sentences under Article 161 (mercy plea).
The Governor couldn’t have forwarded the file to the President under the scheme of the Constitution, the court said. However, it also noted that the file remained pending before the Governor for almost 2.5 years without a decision. The bench said it was only when the Supreme Court began asking about the reason for the delay that the Governor forwarded the state cabinet’s recommendation to pardon Perarivalan.
(Edited by Uttara Ramaswamy)