Governor is but a Shorthand Expression for the State Government: Supreme Court

IN a significant judgment, a three-judge division bench of the Supreme Court ordered the release of A.G. Perarivalan, one of the convicts in former Prime Minister Rajiv Gandhi’s assassination case. The bench, comprising Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna, invoked its inherent powers under Article 142 of the Constitution to treat the sentence awarded to Perarivalan as having been served. It refused to remit the matter back to the Governor since Perarivalan’s petition for remission of sentence had been pending with the governor for two and a half years after the recommendation of the State Cabinet to release him. Perarivalan is currently out on interim bail given by the Supreme Court earlier this year.

The 32-year-long incarceration of Perarivalan, out of which 16 years had been on the death row and 29 years in solitary confinement, his conduct in jail, and his suffering from chronic ailments are the factors that were weighed by the Supreme Court to order his release. Besides, the inexplicable delay on the part of the Governor to take a call on the petition filed by Perarivalan under Article 161 of the Constitution seeking remission of his sentence, also contributed to the court’s order.

The bench noted “There has been no complaint relating to his conduct in jail. On the two occasions that the Appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of the Appellant, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses”,

The issue before the court was regarding the correctness of the reference made by the Tamil Nadu Governor to the President on January 25, 2021, without taking a decision on the recommendation made by the State Cabinet on the remission of Perarivalan’s sentence.

Disapproving the approach of the Governor, Justice Rao, writing the judgement, took note of the precedent established by the Supreme Court in Maru Ram versus Union of India (1981), Samsher Singh versus State of Punjab (1974) and Epuru Sudhakar v. Govt. of A.P. (2006), and held that under the Cabinet system of government as embodied in our Constitution, the Governor is the constitutional or formal head of the State, and they exercise all their powers and functions conferred on them by or under the Constitution on the aid and advice of their Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise their functions in their discretion. He added that the constitutional conclusion is that the Governor is but a shorthand expression for the state government.

Justice Rao further held that petitions under Article 161 pertain to the liberty of individuals; therefore, inexplicable delay – which is not on account of the prisoners – is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner. This is especially so when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence, the bench noted.

The bench also held that the understanding sought to be attributed by the Union Government to the judgment of the Court in Union of India versus Sriharan (2015) with respect to the union government having the power to remit/commute sentences imposed under Section 302 of the Indian Penal Code [IPC] was incorrect, as no express executive power has been conferred on the Centre either under the Constitution or any law made by the Parliament in relation to section 302.

“In the absence of such specific conferment, it is the executive power of the State that extends with respect to Section 302, assuming that the subject matter of Section 302 is covered by Entry 1 of List III“, the bench noted.

Entry 1 of List III – the Concurrent List – has criminal law, including all matters included in the IPC at the commencement of the Constitution, but excluding offences against laws with respect to any of the matters specified in Lists I or II, and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.

The bench concluded that the reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made 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 Supreme Court in Maru Ram.

Perarivalan was sentenced to death by a designated court under the now lapsed Terrorist and Disruptive Activities (Prevention) Act [TADA]. On May 11, 1999, the Supreme Court upheld the conviction and sentence imposed on Perarivalan. However, the conviction and sentence under the TADA were set aside.

His mercy petition was rejected by the Governor and the President of India. Eventually, on February 18, 2014, the Supreme Court commuted the death sentence to imprisonment for life on the ground of inordinate delay in deciding his mercy petition.

Click here to view the Supreme Court’s full judgment.