New Delhi: The Supreme Court on Wednesday ordered the release of A.G. Perarivalan – one of the seven convicts in the former Prime Minister Rajiv Gandhi assassination conspiracy case undergoing life imprisonment - holding that the "advice of the state cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution."
Setting free Mr Perarivalan, who is at present on bail, Justice L.Nageswara Rao, heading a bench also comprising Justices B.R. Gavai and A.S. Bopanna, said that Mr Perarivalan was 19-year-old when he was arrested in 1991 and he has already spent 32 years in jail, out of which 16 years were spent on the death row and 29 years in solitary confinement.
Perhaps it is the first instance when one of the convicts (along with others) escaped a death sentence and now walks free due to the failure of the Governor to decide either way. On September 9, 2018 the Tamil Nadu government decision to grant remission of sentence to Mr Perarivalan, along with other convicts – Murugan, Santhan, Nalini, Robert Pious, Jayakumar and Ravichandran. Initially, the decision to release the seven convicts was taken in February 2014. It had led to prolonged litigation in the top court.
Noting that the conduct of Mr Prearrival, both in the jail and on two occasions when he was released on bail, was good and there was no complaint regarding his conduct or breach of any condition of release on bail, the court said that he was suffering from chronic ailments and has also educated himself and successfully completed his 12th exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses.
Releasing Mr Perarivalan taking recourse to its plenary powers under Article 142 of the constitution, the court said, "We do not consider it appropriate to remand the matter for the Governor’s consideration."
Refusing to send the matter back to the Governor for his consideration, Justice Rao, pronouncing the judgment, said, "Given that his petition under Article 161 remained pending for two-and-a-half years following the recommendation of the state cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor’s consideration."
Finding flaws with the way the then Tamil Nadu Governor Banwari Lal Purohit sat on the September 9, 2018 decision of the Tamil Nadu government for over two-and-a-half-year and then referring the matter to the President on January 25, 2021 that too without taking any decision, the court said, "The reference of the recommendation of the Tamil Nadu cabinet by the Governor to the President of India two-and-a-half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our constitution, whereby "the Governor is but a shorthand expression for the state government."
Taking a dim view of the delay on the part of the Governor in not adhering to the decision of the Tamil Nadu government and then referring the matter to the President of India, the top court cited an earlier judgement of the Supreme Court relating to the powers of the Governor under Article 161 of the constitution which said, “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.”
Holding that the non-exercise of the power under Article 161 is not immune from judicial review, the court said, “We are fully conscious of the immunity of the Governor under the constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties. However, as held by this court in numerous decisions, this court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds. Non-exercise of the power under Article 161 is not immune from judicial review…”
The judgement releasing Mr Perarivalan is likely to be relied upon by six other convicts—Murugan, Santhan, Nalini, Robert Pious, Jayakumar and Ravichandran—to seek their release.
Mr Perarivalan was convicted for supplying two 9 Volts batteries that were used in the assassination of Mr Gandhi. The former Prime Minister was killed by a human bomb Dhanu during a public meeting at Sriperumbudur on May 21, 1991.