In Perarivalan’s case, the constitutional battle between governor and government

The Supreme Court’s action in exercising its inherent power under Article 142 of the Constitution and ordering the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case, has resulted in mixed reactions. A Congress spokesperson in Tamil Nadu called the verdict a victory for terrorism and money power. His reaction was strengthened by the state Congress Committee calling for a peaceful protest for one hour, with protesters standing with their mouths gagged.

Notwithstanding these small ripples, the Supreme Court’s verdict was broadly welcomed as it put an end to travails that lasted more than two decades. It also brought an end to the battle between the Raj Bhavan and Secretariat.

After the assassination of Rajiv Gandhi, the assailants were tried under the notorious Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) under which an in-camera trial was conducted. The Act also allowed confessions made before a police officer not below the rank of a Superintendent as admissible in evidence, in contrast to the trial for offences under the Indian Penal Code. To the shock of everyone, all 26 accused were given the death sentence by the Special Court for various offences, including under TADA (1998).

The provisions of TADA prescribed only an appeal to the Supreme Court. Fortunately, the SC held that the offences under TADA were not made out since there was no case to proceed for acts of terrorism. It also modified the death penalty for 22 persons and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).

They petitioned the governor of Tamil Nadu for mercy under Article 161. Fathima Beevi, then governor of Tamil Nadu, and earlier an SC judge, dismissed their petition without any advice from the cabinet headed by M Karunanidhi. The Madras High Court ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers. The ball was back in the government’s court. The Karunanidhi government was being targeted as being soft on the LTTE. The cabinet advised the governor to give reprieve only to Nalini Sriharan and rejected the case of the other three, including Perarivalan.

Giving reprieve to persons sentenced to the death penalty, even in the exercise of the plenary powers by a governor, has limitations. In 1978, Parliament amended the Criminal Procedure Code and introduced Sec 433A by which in such cases, prisoners cannot be released from prison unless they had served a minimum of 14 years in prison. Perarivalan and the two other convicts appealed to the president with a mercy plea under Article 72. Two successive presidents of India – K R Narayanan and APJ Abdul Kalam — did not pass any mercy orders. But all of a sudden, their mercy pleas were rejected after a delay of 11 years by President Pratibha Patil. At this stage, the T N Assembly took the extraordinary step of passing a resolution requesting the president to grant pardon to the seven accused (2011).

When they were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant issued against them. The cases were transferred to the SC, which decided that the president’s action in not considering the mercy plea within a reasonable time was improper and since the three prisoners had been on death row for 11 years, it was a fit case for commuting their sentence to life imprisonment.

Meanwhile, on February 19, 2014, the TN cabinet advised the governor to grant reprieve to all seven accused. The Union of India filed a petition and got the cases transferred to the SC. The constitution bench opined that a life sentence means imprisonment for the remainder of one’s life but the convicts can apply for remission under Sec.432, CrPC. This applies to cases where death sentences are commuted.

Once again, all of them applied for remission from the governor. The state cabinet also advised the governor to grant pardon. As there was no response, Nalini moved the court. The Madras HC declined to give any direction and held: “…the Governor of the State is insulated from being questioned or made answerable to the Courts with respect to discharge of his constitutional functions and duties.” When Arputhammal, Perarivalan’s mother, filed a case for parole, the court noting the inordinate delay observed: “the Governor of T N, a constitutional authority, cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long” (July 2020). The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA). The MDMA was set up in 1998 at the recommendation of the Justice M C Jain Commission of Inquiry, which had probed the conspiracy aspect of Rajiv Gandhi’s assassination.

The role of MDMA itself came up for criticism by the SC in January 2018 and it observed that the agency did not appear to have made “much headway”. Assuming its final report will contain some adverse material to the seven accused waiting for remission, the question of reopening the case against them will not arise as they had been already convicted for murder and conspiracy. Article 20(2) of the Constitution guarantees that no person can be prosecuted and punished for the same offence more than once.

Once again, the process of granting mercy to the seven accused began with a resolution passed by the T N Assembly on September 9, 2018. On the same day, the state cabinet advised the governor to give reprieve to all seven prisoners. No action was taken by the governor. On being compelled by the court, the governor stated that the matter was to be dealt with by the President. It was at this stage the matter went back to the SC. It was finally decided that the authority to grant pardon is with the governor and he is bound by the advice of the state government. The court also ruled that the action of the governor in delaying the matter for more than 2.5 years was unacceptable. Exercising its power under Article 142 as well as considering all the relevant circumstances, the SC ordered Perarivalan’s release.

India’s penal system is undoubtedly reformatory and not retributive. The SC ruled on this issue by stating “a barbaric crime does not have to be visited with a barbaric penalty.” Those who speak against the reprieve given to Perarivalan neither understand India’s penal system nor are they willing to see the reason behind the SC order. Ultimately, in this country, when an offence has political overturns, it is political considerations rather than criminal jurisprudence that deals with the penalties for it.

It is unconscionable that the successive governments ruled by the Congress and BJP were able to manipulate the office of the governor with directions from the Union home ministry. This perverted the constitutional scheme. It is also surprising that the successive governments at the Centre appeared to be guided in this case by geopolitical considerations rather than this country’s laws. It is their indecision – or rather the abdication of their responsibility — which led to the court deciding the issue. It is not as if Justice Nageswara Rao is not exposed to these issues. As a senior lawyer, he defended several cases for the State of Tamil Nadu headed by Jayalalithaa before the review committee deciding the maintainability of POTA offences against Tamil nationalist leaders like P Nedumaran, Vaiko and others.

The question now is whether the six other prisoners will receive the same relief or will there be an ugly confrontation between the state government and governor once again. Let us hope that wisdom prevails and the governor’s office is not manipulated for narrow political considerations.

The writer is a former justice of the Madras High Court