New Delhi: A.G. Perarivalan was 19 years old when he was arrested in June 1991, accused of having bought two battery cells for Sivarasan, the LTTE man who masterminded the conspiracy to kill former prime minister Rajiv Gandhi. The battery cells were used in the bomb that killed Gandhi.
The 30 years that he has spent in prison have been a long tale of twists and turns with multiple rounds of litigation. Perarivalan had remained on death row for 23 years, before the Supreme Court commuted his death sentence, along with that of two other convicts, to imprisonment for life in February 2014. This was after the court noted that successive Presidents had taken more than 11 years to decide on their mercy petitions.
Meanwhile, the CBI superintendent of police, V. Thiagarajan, who had recorded Perarivalan’s confession — the CBI’s main weapon against him in securing his conviction — told the Supreme Court in November 2013 that he had not recorded the confession accurately.
Tamil Nadu Governor Banwarilal Purohit has now refrained from taking a call on Perarivalan’s early release, saying the President of India is the “appropriate competent authority” to deal with Perarivalan’s request for freedom. The governor took more than two years to reach this conclusion — the Tamil Nadu State Cabinet had advised him in September 2018 to order the release of several convicts in the case.
However, experts feel the governor could have taken a call on Perarivalan’s plea, relying on his constitutional powers under Article 161, and even opined that by not taking a call, the governor was “abdicating his exercise of power”.
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Articles 72 and 161
Articles 72 and 161 of the Constitution empower the President of India and the governors of states to grant pardon or suspend, remit or commute sentences in certain cases.
Under Article 72, the President has the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. He can do so in all cases where the punishment or sentence is handed down by a court martial, in cases where the punishment or a sentence is for an offence under any law relating to a matter to which the executive power of the Union extends, and in all cases where a death sentence is awarded.
Article 161 grants the governor the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence”. The governor can do so for any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
Constitutional expert Faizan Mustafa explained that “executive power” here is in the context of legislative power.
“For the Centre, the executive power is only in respect of matters on which the Parliament can legislate. For the State, it is only in respect of matters on which the State can legislate.” He pointed out that states can also amend the criminal law since it is a concurrent list subject.
Since Perarivalan’s conviction now only stands for conspiracy to commit murder, under the Indian Penal Code (IPC), the governor would also be able to take a call on his remission.
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The 2015 verdict
In February 2014, the Tamil Nadu government proposed to remit the sentence of life imprisonment and release all the seven convicts in the assassination. The Centre rushed to the Supreme Court challenging this.
In 2015, a Constitution bench of the Supreme Court ruled that the Centre and not the state government will have the “primacy” in deciding whether persons convicted in matters of the CBI or central agency should be released or not on remission as in the Rajiv Gandhi killers’ case.
The Supreme Court had ruled that the word “consultation” used in Section 435 of the Code of Criminal Procedure (CrPC) actually meant “concurrence”. However, this was only with respect to the state government’s powers under Sections 432 to 435 of the Code of Criminal Procedure, which also allow the state government, “after consultation with Central Government”, to suspend or remind sentences of convicts.
Dr Anup Surendranath, who teaches constitutional law at National Law University Delhi, pointed out that the Supreme Court had noted in the same judgment that the governor’s power under Article 161 were “untouchable and unapproachable”, when compared to “the statutory powers under the CrPC [Relying on another constitution bench judgment in Maru Ram]”.
“Therefore, the governor can still exercise his powers under Article 161, and is not bound by the concurrence requirement in the CrPC,” he added.
Governor is appropriate authority
Surendranath asserted that it is the governor who is the appropriate authority to consider Perarivalan’s application for release.
In an email response to ThePrint, he referred to the text of Article 161 that says the power of the governor to extend to offences under laws to which “the executive power of the state extends”.
He explained: “Perarivalan’s conviction and sentence was under S.302 of the IPC, as he had been acquitted of TADA offences. S.302, or murder, is a matter to which the executive power of the state extends, as held by the concurring opinion of Justice Lalit in the Constitution bench decision [Para 219].”
“A textual reading of the Constitution therefore leads to the conclusion that the Governor is the appropriate authority to consider Perarivalan’s application for release,” Surendranath added.
Senior advocate K.T.S. Tulsi also concurred with this view. “The governor has independent power. He could do it if he so wanted to,” he told ThePrint.
Tulsi added: “They are just making a football of the plea from one side to the other, which is going on for quite some time. And it is very unfortunate. They have to take a call and decide one way or the other.”
‘Abdication of power’
Musatafa also opined that the governor is “abdicating his exercise of power” in view of the “political significance of this case”.
He said: “The governor, in exercising his pardoning power, is not under the control of the Government of India. It’s his power and therefore, ideally he should exercise it on his own, on the aid and advice of his council of ministers.”
Mustafa added: “This is why Tamil Nadu governor does not want to take any action on the advice of the state government, because the State is going to polls in two months’ time now… Hence he refrained from taking a decision himself.”
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