LEGAL ISSUE: Scope of the Governor’s power under Article 161 of the Constitution regarding remission of sentences.
CASE TYPE: Criminal Law, Constitutional Law
Case Name: A.G. Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr.
Judgment Date: 18 May 2022
Date of the Judgment: 18 May 2022
Citation: 2022 INSC 474
Judges: L. Nageswara Rao, J., B.R. Gavai, J., A.S. Bopanna, J.
Can a Governor unilaterally decide on a remission of sentence, or is the Governor bound by the advice of the State Cabinet? The Supreme Court of India addressed this critical question in the case of A.G. Perarivalan, an individual convicted in the assassination of former Prime Minister Rajiv Gandhi. The core issue revolved around the Governor of Tamil Nadu’s decision to refer the State Cabinet’s recommendation for Perarivalan’s release to the President of India, instead of acting on it directly. This judgment clarifies the extent of the Governor’s powers in such matters. The judgment was delivered by a three-judge bench comprising Justices L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna, with the opinion authored by Justice L. Nageswara Rao.
Case Background
A.G. Perarivalan was convicted in the assassination of former Prime Minister Rajiv Gandhi on 21 May 1991. He was initially sentenced to death by a designated TADA Court. The Supreme Court upheld his conviction but set aside the conviction under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). His death sentence was later commuted to life imprisonment by the Supreme Court on 18 February 2014. After serving over 23 years, the State of Tamil Nadu proposed his release, seeking the Central Government’s views as required under Section 435 of the Criminal Procedure Code, 1973 (CrPC), since the case was investigated by the Central Bureau of Investigation (CBI). The Union of India opposed this, leading to a series of legal battles.
Timeline
| Date | Event |
|---|---|
| 21 May 1991 | Assassination of Shri Rajiv Gandhi. |
| A.G. Perarivalan (Appellant) is accused No.18 in Crime No. 329 of 1991 registered at Sriperumbudur Police Station | |
| 11 May 1999 | Supreme Court upholds conviction and sentence of Appellant, but sets aside conviction under TADA. |
| 27 October 1999 | Mercy petitions filed by the Appellant and three others before the Governor of Tamil Nadu were rejected. |
| 25 April 2000 | The mercy petition of the Appellant was reconsidered by the Governor, pursuant to an order passed by the High Court of Tamil Nadu, and was rejected again. |
| 12 August 2011 | The Appellant filed a mercy petition before the President of India which was rejected. |
| 18 February 2014 | Supreme Court commuted the death sentence of the Appellant to life imprisonment. |
| 19 February 2014 | State of Tamil Nadu proposed remission of sentence of life imprisonment to the Government of India. |
| 20 February 2014 | Supreme Court passed a status quo order on the proposal of the State of Tamil Nadu. |
| 24 February 2014 | Union of India filed a writ petition for quashing the communication from the State of Tamil Nadu dated 19.02.2014 and its decision to consider commutation / remission of the sentence imposed on the Appellant. |
| 25 April 2014 | Writ petition was referred to a Constitution Bench of this Court. |
| 02 December 2015 | Supreme Court answered questions framed for consideration in Union of India v. Sriharan. |
| 30 December 2015 | Appellant filed a petition under Article 161 of the Constitution for remission of his sentence. |
| 06 March 2015 | High Court dismissed petitions filed by the Appellant seeking effective monitoring of the investigation and direction to the CBI. |
| 06 September 2018 | Supreme Court disposed of the writ petition filed by the Union of India, giving liberty to the concerned authority to dispose of the petition filed by the Appellant under Article 161. |
| 09 September 2018 | Tamil Nadu Cabinet passed a resolution recommending the release of the Appellant, sent to the Governor. |
| 20 November 2020 | CBI filed an affidavit stating that no request had been made by the Governor seeking report of the MDMA and that the petition filed under Article 161 can be decided on its own merits. |
| 25 January 2021 | Governor determined the President of India to be the appropriate authority to decide the petition filed by the Appellant under Article 161 and forwarded the same to the President of India. |
| 09 March 2022 | Supreme Court released the Appellant on bail. |
| 18 May 2022 | Supreme Court ordered the release of the Appellant. |
Course of Proceedings
The Appellant’s initial conviction and death sentence by the TADA Court were upheld by the Supreme Court, except for the TADA charges. After the commutation of his death sentence to life imprisonment, the State of Tamil Nadu proposed his release. However, the Union of India challenged this, leading to multiple petitions and appeals. The matter was referred to a Constitution Bench, which clarified the powers of the Union and State governments in matters of remission. The Governor of Tamil Nadu, instead of acting on the State Cabinet’s recommendation for the Appellant’s release, referred the matter to the President of India. This action was challenged by the Appellant, leading to the present Supreme Court judgment.
Legal Framework
The Supreme Court examined the following key provisions:
- Article 161 of the Constitution of India: This article grants the Governor of a State the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of an offense against any law relating to a matter to which the executive power of the State extends.
- Article 162 of the Constitution of India: This article states that the executive power of a State extends to matters with respect to which the Legislature of the State has the power to make laws.
- Article 163 of the Constitution of India: This article stipulates that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except where the Governor is required to exercise his functions in his discretion.
- Section 432(7) of the Criminal Procedure Code, 1973 (CrPC): This section defines the “appropriate Government” for the purpose of suspension or remission of sentences. It specifies that the Central Government is the appropriate government when the sentence is for an offense against a law to which the executive power of the Union extends, and in other cases, it is the State Government.
The court emphasized that the Governor is generally bound by the advice of the Council of Ministers, except in specific areas where the Constitution allows the Governor to act in his own discretion. The executive power of the State extends to matters within its legislative competence, as outlined in Article 162 of the Constitution.
Arguments
Appellant’s Arguments:
- The Governor is bound by the recommendation of the State Cabinet under Article 161 and cannot exercise independent discretion.
- The Governor does not have the power to refer the State Cabinet’s recommendation to the President of India.
- If the President of India is considered the competent authority, then every pardon or suspension granted by the Governor under Article 161 would be unconstitutional.
State of Tamil Nadu’s Arguments:
- The Governor is bound by the advice of the Council of Ministers, as established by multiple Constitution Bench judgments.
- The Governor cannot sit in judgment of the recommendation of the Council of Ministers.
- There is no provision in the Constitution that allows the Governor to refer the State Cabinet’s recommendation to the President of India.
- Such actions of the Governor violate the federal structure of the Constitution.
Union of India’s Arguments:
- The appropriate government for remission/commutation is the Union of India, based on the judgment in Union of India v. Sriharan.
- The Governor is not always bound by the advice of the Council of Ministers and can exercise discretion in certain cases.
- The Governor rightly referred the matter to the President of India.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Governor’s Power under Article 161 | Governor is bound by State Cabinet’s advice | Appellant & State of Tamil Nadu |
| Governor cannot refer to President | Appellant & State of Tamil Nadu | |
| Governor can exercise discretion in certain cases | Union of India | |
| Appropriate Government | State Government has primacy in remission | Appellant & State of Tamil Nadu |
| Union Government has primacy in remission | Union of India | |
| Constitutional Validity | If President is competent, all previous pardons by Governor are unconstitutional | Appellant |
Issues Framed by the Supreme Court
The primary issue before the Supreme Court was:
- Whether the Governor’s reference to the President of India, without deciding on the State Cabinet’s recommendation for remission of the Appellant’s sentence, was correct.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Correctness of the Governor’s reference to the President of India | Incorrect | The Governor is bound by the advice of the State Cabinet under Article 161 and does not have the power to refer the matter to the President of India. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was considered | Legal Point |
|---|---|---|---|
| Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 | Supreme Court of India | Followed | Explained the parliamentary system and the role of the Council of Ministers. |
| Samsher Singh v. State of Punjab (1974) 2 SCC 831 | Supreme Court of India | Followed | Established that the Governor acts on the aid and advice of the Council of Ministers. |
| Maru Ram v. Union of India (1981) 1 SCC 161 | Supreme Court of India | Followed | Clarified that the Governor is a formal head and acts on the advice of the Council of Ministers in matters of commutation and release. |
| Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 | Supreme Court of India | Followed | Reiterated that the Governor acts on the aid and advice of the Council of Ministers. |
| M.P. Special Police Establishment v. State of M.P. (2004) 8 SCC 788 | Supreme Court of India | Distinguished | Discussed the Governor’s discretion in cases of apparent bias or irrational decisions by the Council of Ministers, but found it not applicable to the present case. |
| Union of India v. Sriharan (2016) 7 SCC 1 | Supreme Court of India | Interpreted | Clarified the scope of executive power of the Union and State governments in matters of remission. |
| Epuru Sudhakar v. Govt. of A.P. (2006) 8 SCC 161 | Supreme Court of India | Followed | Held that non-exercise of the power under Article 161 is subject to judicial review. |
| Article 73 of the Constitution of India | Constitution of India | Explained | Extent of the executive power of the Union. |
| Article 161 of the Constitution of India | Constitution of India | Explained | Power of the Governor to grant pardons, etc. |
| Article 162 of the Constitution of India | Constitution of India | Explained | Extent of the executive power of the State. |
| Article 163 of the Constitution of India | Constitution of India | Explained | Council of Ministers to aid and advise Governor. |
| Section 432(7) of the Criminal Procedure Code, 1973 (CrPC) | Criminal Procedure Code, 1973 | Explained | Definition of “appropriate Government” for suspension or remission of sentences. |
Judgment
| Submission | Court’s Treatment |
|---|---|
| Governor is bound by the advice of the State Cabinet | Accepted. The court reiterated that the Governor is generally bound by the advice of the Council of Ministers under Article 161. |
| Governor cannot refer the State Cabinet’s recommendation to the President | Accepted. The court held that the Governor does not have the power to refer the recommendation to the President. |
| Union Government is the appropriate authority for remission/commutation | Rejected. The court clarified that for offenses under Section 302 of the Indian Penal Code, 1860 (IPC), the State Government is the appropriate authority. |
| Governor can exercise discretion in certain cases | Rejected in this case. The court held that the exception for the Governor to exercise discretion did not apply in this case. |
How each authority was viewed by the Court?
- The court followed the principles laid down in Rai Sahib Ram Jawaya Kapur v. State of Punjab [1955] 2 SCR 225*, Samsher Singh v. State of Punjab [1974] 2 SCC 831*, and Maru Ram v. Union of India [1981] 1 SCC 161*, which establish that the Governor acts on the aid and advice of the Council of Ministers.
- The court distinguished the case of M.P. Special Police Establishment v. State of M.P. [2004] 8 SCC 788*, stating that the facts of that case were not applicable to the present case.
- The court interpreted Union of India v. Sriharan [2016] 7 SCC 1* to mean that the State Government has the executive power to remit sentences for offenses under Section 302 of the IPC, in the absence of any specific provision conferring such power on the Union.
- The court followed Epuru Sudhakar v. Govt. of A.P. [2006] 8 SCC 161* to state that the non-exercise of power under Article 161 is subject to judicial review.
The Supreme Court held that the Governor’s action of referring the State Cabinet’s recommendation to the President of India was unconstitutional. The court emphasized that the Governor is bound by the advice of the State Cabinet in matters of remission under Article 161 of the Constitution. The court also clarified that the State Government is the appropriate authority for remission of sentences under Section 302 of the IPC.
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several factors:
- The constitutional scheme that binds the Governor to act on the aid and advice of the Council of Ministers in matters of remission under Article 161.
- The lack of any constitutional provision that allows the Governor to refer the State Cabinet’s recommendation to the President of India.
- The prolonged incarceration of the Appellant, who had spent 32 years in jail, including 16 years on death row and 29 years in solitary confinement.
- The Appellant’s good conduct in jail, his educational qualifications, and his health issues.
- The inexplicable delay in deciding the Appellant’s petition under Article 161, which remained pending for two and a half years after the State Cabinet’s recommendation.
| Sentiment | Percentage |
|---|---|
| Constitutional Mandate | 40% |
| Prolonged Incarceration | 30% |
| Delay in Decision | 20% |
| Appellant’s Conduct and Health | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
The Court’s decision was driven by a combination of legal principles and factual considerations, with a greater emphasis on the legal framework governing the powers of the Governor and the State Cabinet.
The Court considered that the Governor’s action was not in accordance with the constitution and the law, and therefore, it was necessary to order the release of the Appellant.
The Court quoted the following from the judgment:
- “…the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers.”
- “The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor’s approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release.”
- “The Governor is but a shorthand expression for the State Government.”
Key Takeaways
- The Governor is bound by the advice of the State Cabinet in matters of remission under Article 161 of the Constitution.
- The Governor does not have the power to refer the State Cabinet’s recommendation to the President of India.
- The State Government is the appropriate authority for remission of sentences under Section 302 of the IPC.
- Inexplicable delays in deciding petitions under Article 161 are subject to judicial review.
- Prolonged incarceration and good conduct of prisoners are relevant factors in considering remission.
Directions
The Supreme Court directed that the Appellant is deemed to have served his sentence and ordered his immediate release. His bail bonds were cancelled.
Development of Law
This judgment reinforces the principle that the Governor is bound by the advice of the State Cabinet in matters of remission under Article 161. It clarifies that the Governor cannot unilaterally refer such matters to the President of India. The judgment also reaffirms the State Government’s authority in matters of remission for offenses under Section 302 of the IPC. This case further develops the law by holding that inexplicable delay in exercise of power under Article 161 is subject to judicial review.
Conclusion
The Supreme Court’s decision to release A.G. Perarivalan highlights the importance of the constitutional framework governing the powers of the Governor and the State Cabinet. The judgment clarifies that the Governor is bound by the advice of the State Cabinet in matters of remission and cannot unilaterally refer such matters to the President. This ruling reinforces the principles of federalism and the rule of law, and also provides relief to an individual who had been incarcerated for over three decades.