Pinnacle Court released Perarivalan within the Rajiv Gandhi case convict, by citing extraordinary powers

18-05-2022

The Apex Court used Article 142 of the Constitution that grants it extraordinary powers to try and do complete justice, to release Perarivalan, a Rajiv Gandhi assassination case convict, lodged in prison for over 30 years.

The Supreme Court on Wednesday invoked its extraordinary powers to try to to complete justice under Article 142 of the Constitution and ordered the discharge of A.G. Perarivalan in former Prime Minister Rajiv Gandhi assassination case.

A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long incarceration for over 30 years to order his release. Perarivalan is currently on bail. His executing had earlier been committed to time for murder. Terrorism charges were earlier withdrawn.

The court held that the Tamil Nadu Council of Ministers’ advice on September 9, 2018 to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.

It said the long delay and therefore the Governor’s reluctance to require a turn the pardon plea has compelled the court to use its constitutional powers under Article 142 to try to to justice to Perarivalan.

The court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the facility to grant pardon in a very case under Section 302 (murder) of the Indian legal code, saying this contention would render Article 161 a “dead-letter” and build a rare situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid

Senior advocate Rakesh Dwivedi, for state, had argued that the prospect of the court looking forward to the President’s decision on the mercy plea, as imply by the Centre, was “completely absurd”. Mr. Dwivedi, together with state Additional Advocate General Amit Anand Tiwari and advocate Joseph Aristotle, had said federalism would opt for a toss if that was allowed by the court.

The court protected federalism by holding that States had the facility to advice and aid the Governor just in case of pleas of pardon under Article 161 made by convicts in murder cases.

In the long years of litigation, the Centre, had initially assured the Supreme Court that the Governor would take a invoke Perarivalan’s pardon plea, only to suddenly change tack in November 2020 to mention that it had been the President, under advice of the Centre, who was authorised to make your mind up the plea.

The Centre had banked on a Constitution Bench judgment in Union of India versus V. Sriharan in December 2015, to argue that Section 432(7)(a) of the Code of Criminal Procedure (Cr.PC) gave primacy to the Union and not the States when the case was tried under a law to which the chief power of the Union extended to.

An affidavit filed by the Ministry of Home Affairs last year had submitted that the President of India was the “appropriate competent authority” to house Perarivalan’s request for freedom.

The Ministry’s short affidavit had said “His Excellency the Governor of province considered all the facts on record and after perusal of the relevant documents, recorded that the Honourable President of India is that the appropriate competent authority to cope with the request for remittance vide his order dated January 25, 2021. The proposal received by the Central government are going to be processed in accordance with law”.

However, Perarivalan’s lawyers, senior advocate Gopal Sankaranarayanan and Prabu Ramasubramanian, used the identical Sriharan judgment of the court to counter that the ability of State or Central governments to remit sentences under Section 432 Cr.PC and therefore the clemency power of the President or the Governor couldn't be equated with one another.

“Section 432 was a creature of the Code (Cr.PC). Articles 72 (power of President to grant pardon) or 161, on the opposite hand, was a high prerogative vested by the Constitution within the highest functionaries of the Union and also the States,” Mr. Sankaranarayanan had argued.

The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and can't suffer the vicissitudes of straightforward legislative processes”, Mr. Sankaranarayanan had explained from the Sriharan judgment.

He had argued that the convict was liberated to choose either the Governor or the President to use for pardon.

The Centre had also highlighted that the case against Perarivalan concerned the assassination of none aside from a former Prime Minister. Forty-three others had sustained serious injuries within the bomb explosion at Sriperumbudur in province in 1991.

But Perarivalan had contended that his role within the crime extended to supplying two nine-volt batteries without the knowledge of what it absolutely was visiting be used for. He said his confession under the lapsed TADA to a law officer wasn't valid evidence.

He said he was a “19-year-old boy when his mother handed him over to the CBI... and now has lost all his prime youth in prison, that too, in ward under solitary for over 16 years”. He said his “aged mother and father were watching for their only son to affix them a minimum of within the last years of their life”.

Earlier, Perarivalan had sought an order from the Supreme Court to remain his prison term till the CBI-led multidisciplinary authority’s inconclusive probe into the larger conspiracy behind the assassination was completed.

He had described his case as “unique” and had related the tough circumstances under which he had pursued an education in prison. He had said his health had taken a severe beating from the results of “death row syndrome”.