Power of Governor relating to Remission

 FACT 

A.G. Perarivalan, then 19 years old, was detained in 1991 on suspicion of giving Sivarasan, the brains of the plot to assassinate former Prime Minister Rajiv Gandhi, two 9-volt batteries. The Supreme Court affirmed Perarivalan's death sentence from the TADA court in 1999, however, his conviction and sentence under the Terrorism and Disruptive Activities (Prevention) Act were overturned. Perarivalan was condemned to death in 1998. 11 years later, in 2011, Perarivalan petitioned the President for compassion, but it was denied. In 2014, the Supreme Court commuted the death sentence after determining that the delay violated the procedural due process rights established by Article 21 of the Constitution.

The Tamil Nadu government ordered the release of all seven prisoners, including Perarivalan, in 2014 under section 432 of the CrPC, which deals with the rights of Central and state governments to remit or suspend sentences. However, the Supreme Court stayed the release. In 2015, Perarivalan again petitioned the Governor of Tamil Nadu for remission under Article 161. The Union government received a formal application from the Tamil Nadu government in 2016 asking for the release of all seven prisoners. However, the government rejected the idea in 2018, noting, "The release of the former PM's murderers will create a very questionable precedent. The convicts do not deserve to be released because the case has already been adjudicated by several executive and judicial forums."

The State Cabinet of Tamil Nadu issued an order on September 9, 2018, and forwarded it to the Governor for the release of all seven persons convicted under Article 161, including Perarivalan. The Tamil Nadu governor did not make a decision about the State cabinet's resolution or the 2015 remission petition submitted by Perarivalan.

He filed a motion with the Supreme Court asking for the sentence to be suspended. After considering it for more than 2.5 years, the Governor of Tamil Nadu forwarded the State Cabinet's resolution to the President in January 2021, stating that he is the competent authority to make the decision based on the State Cabinet's proposal.

 WHAT DID THE COURT SAY? 

The Supreme Court ruled that in order to exercise his authority in matters pertaining to commutation/remission under Article 161, the Governor must do so with the advice of the State Cabinet. According to the ruling, "Governor is only a shorthand term for the State Government."

The Court further determined that the Governor of Tamil Nadu's action, which contradicts both federalism and the legislative form of government established by the Constitution, by referring the State Cabinet's suggestion to the President, was "contrary to the constitutional framework." The Court reaffirmed that, in accordance with Article 161, it will have the authority to judicially examine the Governor's directives. Therefore, the Supreme Court may conduct a judicial review of the Governor's failure to exercise his authority or his unreasonable delay.

The Indian Penal Code's Section 302 offences are covered by the executive authority of the States, according to the Supreme Court. Mr. K.M. Natarajan, Additional Solicitor General of India, said that the Union Government should make the decision on commutation or remission in this case, citing M.P. Special Police Establishment v. State of M.P. The Court determined that this matter does not fall within the preceding ruling.

Perarivalan was released by the Court using its exceptional authority granted by Article 142 of the Constitution after two and a half years after the State Cabinet's recommendation because his plea to the Governor under Article 161 was still pending.