Complete justice in a mercy petition

Recently, in Perarivalan’s case, a three-judge Bench of the Supreme Court headed by Justice L. Nageswar Rao has rightly and timely invoked its extraordinary constitutional power, conferred upon it under Article 142 of the Constitution to protect the rule of law, human dignity, and rights from the arbitrary gubernatorial action. By releasing Perarivalan, the Court has sent the right message to the constitutional functionaries to exercise their powers according to the constitutional norms and not play with the personal liberty and dignity of the people. Perarivalan was convicted in the Rajiv Gandhi assassination case based on weak evidence. He spent 31 years in jail. His mother worked very hard for convincing the political executive to grant him a pardon. Both the DMK as well as the AIDMK Governments of Tamil Nadu came with her and supported the Perarivalan’s release. When the Governor did not act according to the elected government’s advice, the matter reached the Apex Court which felt the long incarceration and pain of Perarivalan and exercised its extraordinary powers under Article 142 of the Constitution. The State Cabinet advised the Governor in 2018 to grant pardon to Perarivalan, who had submitted his mercy plea in 2015, but the Governor referred his mercy petition to the President of India, against the well-established constitutional provisions and practice relating to the use of Article 161 of the Constitution. This was nothing but a deliberate abdication of constitutional powers and responsibilities conferred upon the Governor. This is why the Apex Court came down heavily on the Governor and the Central Government and came to the rescue of Perarivalan. The Court has strengthened the Rule of Law by its verdict.

Under our constitutional law and practice, the Governor is a constitutional head of the State who generally exercises his powers and functions conferred upon him by or under the Constitution on the aid and advice of the Council of Ministers headed by the Chief Minister. However, the Governor is not a mere figurehead or a rubber stamp. There are a few areas where the Governor can act according to his discretion. In other words, the Governor can act without receiving the advice of the elected government in certain situations. But the pardoning power of the Governor does not allow him to act independently. This is a matter of executive policy which needs to be handled by the government. in actual constitutional practice, the Home Minister of the State takes a decision, under the overall control and supervision of the Chief Minister, to grant or refuse the pardon to any convict and sends his recommendation to the Governor who merely approves the file as per the constitutional provisions and practices relating to Article 161 of the Constitution. The Governor cannot allow or dismiss the mercy petition of any convict at his discretion. However, the Governor can ask the Home Minister to revisit his decision and answer his queries, if any. But, if the Home Minister reiterates his recommendation, the Governor will have no option but to accept the Home Minister’s view. This is a well-settled position.

In Perarivalan’s case, the Supreme Court has also made it categorically clear that the Governor is bound to exercise the pardoning power on the advice of the State Cabinet. “..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 of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above. It is relevant to point out that the recommendation made by the State Cabinet was on 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of the appellant’s sentence to the President of India”, the Court observed regarding the exercise of the pardoning power by the Governor.

Respecting the constitutional immunity available to the Governor under Article 361 of the Constitution, the Apex Court rightly exercised its powers of judicial review and ordered the government to release Perarivalan immediately. This is a good decision. Had the Court remanded the matter back to the Governor for his decision, more delay could have been occurred. The Court said, “We are fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties. However, as held by this Court in numerous decisions, this Court has the power of judicial review, as held by this Court in Epuru Sudhakar v. Government of A.P. Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners in inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence”.

The Supreme Court decided the matter of Perarivalan based on the constitutional position, human rights jurisprudence, and humanitarian grounds that justify the release of the appellant. The Court took the delay in the mercy petitions seriously. This is what the Court stated about this issue: “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 do not 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 of the Constitution, we direct that the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith.”

Given the above discussion, it is submitted that the Supreme Court has delivered a timely judgment to check the misuse of gubernatorial powers relating to the pardoning power. The Governor of Tamil Nadu had no justification to refer the Perarivalan’s mercy plea to the President of India when the State Cabinet advised him to grant remission to the petitioner. He should have decided the matter himself, as per the Cabinet’s advice. The government is collectively responsible to the State’s Legislative Assembly and the Governor is only a mouthpiece of the government. The Governor was bound to act according to the advice tendered by the State Cabinet. His decision to refer the mercy petition to the President of India went against the well-settled constitutional jurisprudence relating to the pardoning power of the Governor and our federal constitutional governance. The Court observed that the reference made by the Governor to the President of India is without any constitutional backing and is inimical to the scheme of our Constitution, whereby the Governor is but a shorthand expression for the State Government as observed by the Court in the Maru Ram’s case. The Governor cannot override the government. The Court has rightly corrected a constitutional error committed by the Governor of Tamil Nadu. The judgment of the Court will strengthen the rule of law and constitutionalism in our parliamentary democracy. This verdict will be a milestone to avoid the delay in the disposal of mercy petitions by the Governors and the President of India.

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