Context

The Supreme Court’s action in ordering the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case, has resulted in mixed reactions.

Background

• After the assassination of Rajiv Gandhi, the assailants were tried under the notorious Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
• All 26 accused were given the death sentence by the Special Court for various offences, including under TADA (1998).
• Fortunately, the SC held that the offences under TADA were not made out since there was no case to proceed for acts of terrorism.
• It also modified the death penalty for 22 persons and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).
• Petition for mercy under Article 161: They petitioned the governor of Tamil Nadu for mercy under Article 161.
• The then governor of Tamil Nadu dismissed their petition without any advice from the cabinet.
• The Madras High Court ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers.
• The cabinet advised the governor to give reprieve only to Nalini Sriharan and rejected the case of the other three, including Perarivalan.
• Perarivalan and the two other convicts appealed to the president with a mercy plea under Article 72. 
•  Two successive presidents of India – K R Narayanan and APJ Abdul Kalam — did not pass any mercy orders.
• But all of a sudden, their mercy pleas were rejected after a delay of 11 years by President Pratibha Patil.
• When they were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant issued against them.
• The cases were transferred to the SC, which decided that the president’s action in not considering the mercy plea within a reasonable time was improper and since the three prisoners had been on death row for 11 years, it was a fit case for commuting their sentence to life imprisonment.
• Meanwhile, on February 19, 2014, the TN cabinet advised the governor to grant reprieve to all seven accused.
• Once again, all of them applied for remission from the governor.
• The state cabinet also advised the governor to grant pardon.
• WhenPerarivalan’s mother, filed a case for parole, the court noting the inordinate delay observed: “the Governor of T N, a constitutional authority, cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long” (July 2020).
• The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA).

Role of MDMA

• The role of MDMA itself came up for criticism by the SC in January 2018 and it observed that the agency did not appear to have made “much headway”.
• The court observed that the question of reopening the case against them will not arise as they had been already convicted for murder and conspiracy.
• Article 20(2) of the Constitution guarantees that no person can be prosecuted and punished for the same offence more than once.

Use of powers under Article 142 by the Supreme Court

• Once again, the process of granting mercy to the seven accused began with a resolution passed by the T N Assembly on September 9, 2018.
• On the same day, the state cabinet advised the governor to give reprieve to all seven prisoners.
• On being compelled by the court, the governor stated that the matter was to be dealt with by the President.
• It was at this stage the matter went back to the SC.
• It was finally decided that the authority to grant pardon is with the governor and he is bound by the advice of the state government.
• The court also ruled that the action of the governor in delaying the matter for more than 2.5 years was unacceptable.
• Exercising its power under Article 142 as well as considering all the relevant circumstances, the SC ordered Perarivalan’s release.

Limitations on governor’s power

• Giving reprieve to persons sentenced to the death penalty, even in the exercise of the plenary powers by a governor, has limitations.
• In 1978, Parliament amended the Criminal Procedure Code and introduced Sec 433A by which in such cases, prisoners cannot be released from prison unless they had served a minimum of 14 years in prison. 

Reformatory penal system of India

• India’s penal system is undoubtedly reformatory and not retributive.
• The SC ruled on this issue by stating “a barbaric crime does not have to be visited with a barbaric penalty.”
• It is also surprising that the successive governments at the Centre appeared to be guided in this case by geopolitical considerations rather than this country’s laws.

Conclusion

The question now is whether the six other prisoners will receive the same relief or will there be a confrontation between the state government and governor once again. Let us hope that wisdom prevails and the governor’s office is not manipulated for narrow political considerations.

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