THE CONSTITUTIONAL BATTLE IN PERIAVALAN’S CASE

INTRODUCTION

The Supreme court in its order dated 18th may 2022 released A G Perarivalan, one of the Rajiv Gandhi assassination convicts, who has spent 31 years in Jail. The court has declined the centre’s plea that it should wait till the president decides on the issue. Rajiv Gandhi, our former prime minister was assassinated by a woman suicide bomber at a poll rally at Sriperumbudur in Tamil Nadu. Sivasaran, the member of LTTE was behind the whole conspiracy and Perarivalan was accused of providing him two 9 Volt ‘Golden power battery cells’, which were used in that bomb. Perarivalan was only 19 years old when he was arrested on June 11, 1991. In 1998, after seven years, he was sentenced to death by the TADA court and that sentence was upheld by the apex court in 1999. Under article 161 of the Constitution[1], he along with other convicts filed the mercy petition before the Governor of Tamil Nadu in 1999 but it was rejected. After the rejection of that petition, he filed the mercy petition before the president under Article 72 of the Constitution[2] and that too was rejected. Aggrieved by this he filed a writ petition in the high court of madras which got transferred to the Supreme court and under that writ petition apex court commuted the death sentence to life imprisonment. In 2015 Perarivalan filed a remission petition before the Governor of Tamil Nadu under Article 161 of the Constitution[3] but after finding no response from the Governor, he went to the Supreme Court.

LOOPHOLES IN THE CASE

The TADA court’s Verdict of 1998was based on his confession which was establishing a link between his knowledge about the assassins. But Perarivalan time and again declined his confession that he had any knowledge about the use of battery cells to make bombs and claimed innocence. In 2013, IPS officer V Thiagarajan, who had taken Perarivalan’s confession, revealed that Perarivalan had only admitted that he had bought the battery cells but the link between his knowledge about the assassination was the officer’s interpretation. Even after the acceptance of the IPS officer about his interpretation, it took 9 years to get a release from jail. It is a gross violation of the right to life and personal liberty given under article 21 of our Constitution[4]. Even if he had admitted his link with the assassination, his confession can’t be used as substantive evidence because under the Indian Evidence Act[5]confession can only be used as corroborative evidence, not as a substantive one. Recommendation by the council of ministers regarding Perarivalan’s sentence remission was pending before the Governor for more than two years. When Court Started enquiring about the status of the remission petition, Governor forwarded that petition to the President of India for consideration which is against the constitutional provisions because our Constitution nowhere talks about the power of the Governor to forward the recommendation of the council of ministers to the President. The petition again remained pending before President for one year.

POWER OF GOVERNOR UNDER ART 161[6]

Article 161 of the Constitution[7] of India talks about the power of the Governor to grant pardons, reprieves, and remission to the convicts. This power of the Governor is subjected to two conditions which are given under Articles 162[8] and 163[9] of the Constitution. Under Article 162 Governor can exercise this power only in those cases in which the state legislature has the power to make laws whereas under article 163[10] Governor can exercise the power only with the aid and advice of the council of ministers headed by the Chief Minister and the advice of the council of ministers is binding on the Governor. He can use his discretion only in those cases in which the Constitution requires him to do so or if the decision of the council of the minister is irrational and based on non-consideration of relevant factors as recognized in MP Special Police establishment v State of Madhya Pradesh.[11] But in the present case,[12] there is nothing that can show that any relevant factor was not considered by the state cabinet. Even if something relevant is ignored by the state cabinet that does not give the Governor any authority to refer the decision of the council of ministers to the president. The very act of the Governor is against the federal structure of the country, which is the basic feature of our constitution. If the contention of the Governor that the President of India is appropriate authority to exercise this power is accepted, it would render all the pardons or remission provided by the Governors to date unconstitutional. There is a lot of controversy regarding the condition that the decision taken by the cabinet is binding on the Governor because it can result in arbitrary decisions by the cabinet. But there is less truth and more imagination in this fear because the decision of the cabinet is always subject to judicial review.

POWER OF THE APEX COURT UNDER ARTICLE 142[13]

The Supreme Court in the present case remitted Perarivalan using its power under article 142 of our Constitution[14] which talks about the apex court’s extraordinary powers to do complete justice. But the question remains: can Article 142[15] be extended to such an extent? Ideally, the remission of Perarivalan should be done by Governor, which is the appropriate authority under our Constitution to do so. But the delay on the part of the governor in accepting the cabinet decision was enormous. He did not respond for two and half years and when the Supreme Court asked, he forwarded it to the president. This impacted the fundamental right to life and personal liberty of a person who was legally and constitutionally entitled to release. The very act of the Supreme Court, which is the protector and guarantor of our fundamental rights, is justified because of the peculiar facts of the case and how they unfolded.

CONCLUSION

While the Apex Court by using its extraordinary powers to do complete justice given under article 142 of our Constitution[16]has ordered Perarivalan’s release by considering his good behaviour during parole, chronic ailment, prolonged incarnation, and educational qualification acquired in jail but the events of this case, how they have been unfolded puts a question mark on our justice system. A 19-year-old boy, who was taken by investigating officers for some minor investigation, resulted in the Jail for 31 Years. His every day was full of struggle and humiliation, but he stood the test of time. His adamantine courage and strength set up an example. After this long battle for justice one question remains unanswered what should be done to avoid such type of indefinite delay, motivated by the power-politics, in the absence of any period to accept the decision of the cabinet by the Governor. The investigating officer accepted his mistake in 2013, but it took more than 9 years to get remission. Such type of behaviour is gross negligence of human rights. It puts a question mark on the reasonable expectations and legitimate aspirations of the citizens. Rightly said, “Justice delayed is justice denied.”

Author(s) Name: Sakshi Gour & Neha Kumari (National Law Institute University, Bhopal)

References:

[1]INDIAN CONST. art. 161.

[2]INDIAN CONST. art. 72.

[3]INDIAN CONST. art. 161.

[4]INDIAN CONST. art. 21.

[5] The Indian Evidence Act, 1872, § 26, No.1 Acts of Parliament 1872 (India).

[6]INDIAN CONST. art. 161.

[7] Ibid

[8]INDIAN CONST. art. 162.

[9]INDIAN CONST. art 163.

[10] Ibid

[11] MP Special Police Establishment v State of Madhya Pradesh, (2004) 8 SCC 788.

[13]INDIAN CONST. art. 142.

[14] Ibid

[15] Ibid

[16] Ibid