Authored by Raj Krishna* & Sagarika Swapnil**
On May 18, 2022, a three-judge bench of the Supreme Court of India ordered the release of AG Perarivalan, who has been serving life imprisonment in the assassination case of former Prime Minister Rajiv Gandhi. The Indian Apex Court invoked Article 142 of the Constitution and ruled that there has been an inordinate delay on the part of the Governor in deciding the plea of remission of Perarivalan under Article 161 of the Constitution. As a result, they have stepped into the matter and ordered his release.
It is pertinent to note that in the year 2014, the Supreme Court of India commuted the death sentence of the three accused (Including AG Perarivalan) involved in Rajiv Gandhi's assassination into life term on the ground that there has been an eleven years delay in deciding their mercy petition by the Union Government which in turn had caused dehumanizing effect upon the convicts.
In the year 2018, the Tamil Nadu State Cabinet, on the basis of relevant facts, recommended to the Governor that Perarivalan should be released. However, there was an inordinate delay on the part of the Governor in deciding the plea under Article 161 of the Constitution. Interestingly the Governor’s office submitted before the Apex Court that only President is empowered by the Constitution to decide this case and the Governor lacks competency.
However, the Apex Court refused to accept this argument that only President has the power to grant remissions in cases pertaining to Section 302 of the Indian Penal Code [Murder]. The Apex Court ruled that the Governor is empowered under Article 161 of the Constitution to decide this case, and the State Government is also well-within its authority to aid and advise the Governor in remission pleas pertaining to cases of murder. Lastly, the Apex Court reaffirmed the fact that the decisions of the President and Governor under Articles 72 and 161 are subject to judicial review.
If we look into the process of pardon, we will find that it’s a very simple process. However, the lethargic attitude of the Governments and their political considerations has resulted in inordinate delay in the decision of mercy petition. As a result, the author believes there needs to be a stipulated time period within which the executive should dispose of the mercy petitions. The clemency power is a process by which it is supposed that the defects of our existing penal system will get rectified. However, the delay on the part of the Executive in exercising clemency power frustrates the very purpose of this special power.
The judgement of the Apex Court is, therefore, a welcome judgment. The Court, by this judgment, has reaffirmed the fact that the right to seek mercy under Articles 72 or 161 of the Indian Constitution is a constitutional right. As a result, the same cannot be subject to the whims and fancies of the Executive. The Court, by its ruling, has reminded the Government that it is necessary that the Government performs their constitutional duty with due care or diligence or else the Courts will step in to uphold the cherished Constitutional values.
* An LL.M. student at NLIU Bhopal. He can be contacted at rajkrishnasahay1997@gmail.com.
** Advocate at Patna High Court. She can be contacted at rajkrishnacnlu@gmail.com.