The Supreme Court while ordering the release of AG Perarivalan, a convict in the at Rajiv Gandhi assassination case who was earlier awarded a life sentence, also came down heavily on the Tamil Nadu Governor for not taking a call under the Article 161 of the Constitution for several years. A bench of Justices L Nageswara Rao, BR Gavai and AS Bopanna, on Wednesday, May 18, said the “non-exercise of the power under Article 161 is not immune from judicial review”, and added that the decision of the cabinet is binding on the Governor under the same Article. The Supreme Court ordered his release by invoking Article 142 of the Constitution
In the order, the bench stated that the Indian Constitution “though federal in structure” is modelled on the British parliamentary system. In the system, the executive has the primary responsibility to formulate and bring into practice government policies. However, this exercise of power is because of the confidence the legislative branch of the State has in the executive part.
Making this comparison, the bench said 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 court also pointed out that the Council of Ministers is “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”.
The court also emphasised that “the Governor is the constitutional or formal head of the State and he exercises all his powers and functions” based “on the aid and advice of his Council of Ministers”, according to the Cabinet system of Government as embodied in our Constitution. The court also pointed out that the Constitution requires satisfaction of the President or the Governor for exercising any of their power or function but it is not to their “personal satisfaction”. It means the “satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions,” the court observed.
Referring to the Maru Ram (supra) order pronounced by the Supreme Court, the bench held that “the Governor is but a shorthand expression for the State Government”.
Pointing that the Governor “ought not to have sent the recommendation made by the State Cabinet to the President of India”, the court observed that the action was contrary to the constitutional scheme of India. The court further pointed out that the recommendation made by the State Cabinet remained pending before the Governor for almost two-and-a-half years without a decision being taken. “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 of the appellant’s sentence to the President of India”, the court said.
The court also said that the Governor sending the recommendation to the President after nearly two years was done “without any constitutional backing” and harms our Constitution.
Further, stating that the petitions under the Article 161 pertain to the “liberty of individuals”, the court said “inexplicable delay” was inexcusable. The court also said this contributes to adverse physical conditions and mental distress “especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence”. In this context, the apex court said that “non-exercise of the power under Article 161 “is not immune from judicial review.
The bench observed that Perarivalan was considered to have served his sentence in exercise of their “power under Article 142 of the Constitution'' and ordered his release. The court made the decision taking into account his prolonged period of incarceration, his satisfactory conduct in jail, as well as his chronic ailments, educational qualifications acquired by him during incarceration and the pendency of his petition under Article 161 for two-and-a-half years after the recommendation of the State Cabinet. The court also made a strong point by saying that the bench did not “consider it fit to remand the matter for the Governor’s consideration”.
Perarivalan is one of the seven convicts in former Prime Minister Rajiv Gandhi assassination case. He was jailed for procuring nine-volt batteries, which were used in the improvised explosive device (IED) that killed Rajiv Gandhi. However, in 2017, a CBI official who had recorded his statement said that he had failed to record the confession that Perarivalan was unaware of the purpose of the two batteries he was asked to purchase.