SC junks Centre stand on President role in mercy pleas

NEW DELHI: The Tamil Nadu governor’s decision to refer Rajiv Gandhi assassination convict Perarivalan’s remission plea to the President despite cabinet recommendation “is without any constitutional backing and is inimical to the scheme of our Constitution”, the SC said while ordering his release on Wednesday.
The bench said governor must act not on own judgment but in accordance with the aid and advice of ministers. “The constitutional conclusion is that the governor is but a shorthand expression for the state government,” it said. “The law laid down by this court is clear and explicit. The advice of the state cabinet is binding on the governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the governor’s power to refer a recommendation made by the state cabinet to the President. In the instant case, the governor ought not to have sent the recommendation made by the state cabinet to the President. Such action is contrary to the constitutional scheme elaborated above,” it said.
The court rejected the Centre’s contention that the President is the appropriate authority to decide on the remission plea of a person convicted under a central law. It said, “ . . . insofar as offences under Section 302, IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the state would extend, irrespective of whether the subject matter of Section 302 is considered to be covered by an Entry in List II or an Entry in List III of the Seventh Schedule. ”
Once the death sentence awarded to him was commuted in 2014, Perarivalan moved for a remission plea and the state cabinet backed it but the governor sat on the recom- mendation for two-and-a-half years and referred the case to the President when SC raised questions on the delay on the part of the head of the state. “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 don’t consider it appropriate to remand the matter for the governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142, we direct that the appellant is deemed to have served the sentence in connection with the Crime No. 329 of 1991,” the bench said.