THE CONSTITUTIONAL BATTLE IN PERIAVALAN’S CASE

1. Introduction
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 TADA
court and that sentence was upheld by apex court in 1999. Under article 161, he along with
other convicts filed the mercy petition before 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 and that too was rejected. Aggrieved by this he filed a writ
petition in high court of madras which got transferred to the supreme court and pursuant to
that writ petition apex court commuted the death sentence into life imprisonment. In 2015
Perarivalan filed a remission petition before the Governor of Tamil Nadu under Article 161
of the constitution but after finding no response from the Governor, he went to the Supreme
court.

2. Loopholes in the case

The TADA court’s Verdict of 1998 was based on his confession which was establishing a
link between his knowledge about the assasins. But Perarivalan time and again declined his
confession that he had any knowledge about the use of battery cell to make bombs and
claimed innocence. In 2013, IPS officer V Thiagaragan, 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 more than 8 years
to get the release from the jail. It is gross violation of violation of right to life and personal
liberty given under article 21 of our constitution. Even if he had admitted his link with the
assassination, his confession can’t be used as a substantive-evidence because under Indian
Evidence Act confession can only be used as a 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 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 Governor to forward the recommendation of council of ministers to
the President. The petition again remained pending before President for one year.

3. Power of Governor under art 161.

Article 161 of the constitution of India talks about the power of Governor to grant pardons,
reprieves and remission to the convicts. This power of Governor is subjected to two
conditions which are given under Article 162 and 163 of the Constitution. Under Article 162
Governor can exercise this power only in those cases in which the state legislature has power
to make laws whereas under article 163 Governor can exercise the power only on the aid and
advice of the council of ministers headed by Chief Minister and the advice of council of
ministers is binding on the Governor. He can use his discretion only in those cases in which
Constitution require him to do so or if the decision of council of minister is apparently
irrational and based on non-consideration of relevant factors as recognised in MP Special
Police establishment v State of Madhya Pradesh.1 But in the present case there is nothing
which 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 Governor any authority
to refer the decision of 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.
Even if the contention of the Governor that President of India is appropriate authority to
exercise this power is accepted, it would render all the pardon or remission provided by the
Governors till date as unconstitutional.

1
MP Special police establishment v state of Madhya Pradesh,2(2004) 8, SCC 788.
Conclusion
While the Apex Court by using its extraordinary powers to do complete justice given under
article 142 of our Constitution 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,

Even after this long battle for justice one question remains unanswered what should be done
to avoid these indefinite delay, motivated by the power-politics, in the absence of any time
period to

Even after the acceptance of office it took more than 9 years

Such type of behaviour is gross negligence of human rights.

Justice delayed is justice denied.

He has stood the test of time.

His Adamantine courage and strength set up a

Reasonable expectations and legitimate aspirations

Why does the Centre continue to impose restrictions in his case, which comes under IPC
section 302 where the state has powers.

He was only 19 when he was whisked away by the police for what they said was a minor
investigation