The Supreme Court has invoked its extraordinary power to order the release of A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case, for whose freedom his mother, many political parties and vast sections of public opinion have been campaigning for years. The suicide bombing that took the life of Rajiv Gandhi, along with that of 15 others, including nine police personnel, on “Tamil soil” caused a great deal of revulsion in the State, but this sentiment abated with the passage of time. Perarivalan drew much public sympathy, largely due to the fact that he was only 19 when he got embroiled in the assassination plot and later revelations that a portion of his confessional statement was improved by a police officer to link his purchase of a battery to the one used in the belt bomb that was used in the suicide bombing. But essentially, the verdict of the three-member Bench is an indictment of the disregard for federal norms in the deliberate inaction that Raj Bhavan displayed when presented with a Cabinet advice to release them in 2018. Going by the Union government’s arguments, one can discern that it was the Centre’s guiding hand that was responsible for the delay. The then Governor had referred the Cabinet advice to the President for a decision. The Centre, too, argued, that cases involving murder under the IPC came under the President’s exclusive jurisdiction in matters of remission of life sentences. The Court has put an end to all doubts by holding that the Governor is bound by the State Cabinet’s advice when acting under Article 161 of the Constitution, that his reference to the President was “inimical to the scheme of the Constitution” and that remission remains firmly under the State’s jurisdiction in this case.
Even when a Constitution Bench, while resolving legal questions over the statutory power of remission under the Cr.P.C., held that the release of these convicts would require the Centre’s concurrence, it had made it clear that the constitutional powers of the President (Article 72) and the Governor (Article 161) “remain untouched”. In the light of this, and the position that remission powers are exercised solely on Cabinet advice, there was no infirmity in the State’s recommendation to the Governor in 2018 for their release. While the Bench has done well to put an end to doubts about the Governor’s remission power and the manner of its exercise, a sticking point remains. Nothing has been said on what should be done when the absence of any time frame for the President or the Governor is cynically exploited to indefinitely delay executive decisions. It is impractical for every matter to be escalated to the point that the Supreme Court needs to invoke its extraordinary powers under Article 142. However, the judgment should not be seen as any endorsement of the claims of innocence of the convicts in the dastardly conspiracy. And whether governments should recommend remission on the basis of public opinion remains a question to ponder.
