CONSTITUTIONAL LAW II

‘A.G. PERARIVALAN VS. STATE & ANR.’

Criminal Appeal No. 835 of 2022, (@ SLP (Crl.) No. 2363 of 2021)

CASE COMMENTARY/CASE ANALYSIS

INTERNAL ASSESSMENT-I

Name Raghav Agarwal

PRN 21010122059

Year Second Year, Semester Three

Division -

Course LL.B

SUBMITTED TO S.M. AAMIR ALI

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TABLE OF CONTENTS

S. NO. TITLE PAGE NO.

1. Facts of the Case 3

2. Issue(s) Involved 3

3. Law/Rules Involved 4-5

4. Application/Analysis 5-6

5. Conclusion 7

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 FACTS OF THE CASE
The A.G. Perarivalan highlights the integral facets of Corporative Federalism, specifically the
Scope of Article 161, Governor’s power to grant pardons, remit or commute sentences, etc.
and the need for President's review in certain cases.

 In 1991, Perarivalan, who was 19 at that time, was imprisoned for the assassination of the
former Prime Minister Rajiv Gandhi, orchestrated by LTTE militants. He provided the battery
cells used in the explosion, for which he was awarded life imprisonment, which later was
converted into a death sentence in 1998, along with four of the accomplices.

 In 2014, their death sentence was commuted to life sentence due to the undue delay and time
taken in considering the mercy plea.

 In 2015, he filed a clemency petition for remission of his sentence to the Governor, which was
rejected on the grounds that such a petition could only be heard in the apex court. The
Supreme Court was of the opinion that the Governor had the jurisdiction to grant remission.

 In 2018, the State Government decided to use Article 161 to remit Perarivalan’s and other
convicts’ sentence, and advised the Governor to do so, however, the Governor did not act on
this for about three years, after which, sent this matter forward for the President’s review.

 The Supreme Court bench held that the Governor had the authority to grant the petition and
the delay could give rise to Judicial review

 In May, 2022, the Supreme Court exercised its powers under Article 142, and ordered the
release of Perarivalan.

ISSUE(S) INVOLVED
After examining the case, certain issues have been identified with respect to federal structure,
corporate federalism, the autonomy and pardoning powers of the governor. They can be
narrowed down as follows-

1. Does the Executive Powers in criminal matters, lie with the Union or the State?

2. What is the Governor’s scope of jurisdiction under Article 161 in commuted sentences?

3. Can the Governor send matters in his jurisdiction for the President’s review?

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 LAW/RULES INVOLVED

The laws that need to analyze this case are as follows-

1. Article 1611- This article speaks about the Governor’s power to grant pardons, suspend,
and remit and commute sentences of any convict for legal violations in the cases over
which the State has the executive power. This is an integral feature of the federal
structure. The Governor has the power do so, however, ideally he must act congruous to
the State Cabinet’s advice.

2. Article 1422- Article 142 provides the Supreme Court with ‘extraordinary,
discretionary’ powers to ensure complete justice, and for the protection of people and
environment. The Supreme Court can exercise its authority throughout India and can
make orders to call for anyone’s attendance, the documents, investigations or
punishments. Some of the instances where the Supreme Court applied Article 142 was
the Union Carbide Case3 to provide relief to thousands of victims, ‘Cleansing of Taj
Mahal’ for the protection of the monument. However, the Article 142 works towards
supplementing the law, not superseding it, as held in Supreme Court Bar Association v.
Union of India4

3. Article 735- This Article speaks about the extent of the Union’s executive power. The
Constitution provides the Union to exercise its executive powers over all matters over
which the Parliament has made laws and all treaties/agreements made by the
Government of India. This Article also speaks about the powers of the State and any of
its officers to have similar executive powers over its State.

4. Section 432(7) of CrPc6- the Section 432 speaks about the appropriate Government’s
power to suspend or remit sentences, based on the judge’s approval. The sub-clause ‘7’
speaks about the appropriate Government, wherein part ‘b’ states that State Government
would be the appropriate government in which the offender is sentenced.

5. Section 433 of CrPc7- This section gives the degrees of commutation of the convict’s
sentences. For instance, a sentence of death can be commuted to other punishments in
the Indian Penal Code, life imprisonment for imprisonment of fourteen years, rigorous
imprisonment for simple imprisonment and simple imprisonment for a fine.

1
India Const. art. 161.
2
India Const. art. 142.
3
Union Carbide Corporation etc. v. Union Of India, 1992 AIR 248
4
Supreme Court Bar Association v. Union of India (1995) 2 SCC 584
5
India Const. art. 73.
6
The Code of Criminal Procedure, 1973. §432(7), Act No. 2 Of 1974
7
The Code of Criminal Procedure, 1973. §433, Act No. 2 Of 1974
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 6. Section 302 of IPC8- This section speaks about the punishment for murder, which could
be death/life imprisonment and could be accompanied with a fine.

APPLICATION/ANALYSIS
The court had initially pronounced a death sentence to Perarivalan in 1998, however due to
unacceptable and unexpected delay, in 2014, his sentence was commuted by the Supreme
Court. This was in line with the rule of double jeopardy9, which ensures that no individual is
punished for the same offence more than once. Hence, since the commutation of Perarivalan’s
sentence to life imprisonment by the Supreme Court, the Governor, acting on behalf of the
State Cabinet, had the authority under Section 432, to review and permit his remission.

To determine whether the State Government or the Union Government has Executive
Jurisdiction over this matter, there are a few things that need to be considered. After analysing
the scope of Article 73, State Government would have the executive authority to grant
remission. The Indian Penal Code as well as the Code of Criminal Procedure do not have
‘saving clause’ that reserves the Union’s executive power. Also with respect to Section 302,
there are no specific provisions in the Constitution or parliamentary laws giving exclusive
executive powers to the Union. Hence, the State’s executive powers would be valid. Also it
can be assumed that since the Indian Penal Code is not enacted by the Parliament, even though
it has been amended by it, the State’s executive’s powers would not be curbed. Hence, this
highlights the dynamicity of the Indian federal structure, not confining to rigid allocation of
criminal laws in Entry 1 of the Concurrent List. Hence by Section 432(7) of the CrPC, the
State Government can be the appropriate Government to remit a convict’s punishment.

The State Cabinet decided to release him however his plea in 2015 to the Governor was not
effective as the Governor citing its jurisdiction lies with the President. In 2018, the Supreme
Court mentioned that the Governor does have the power of remission in this case. Hence, the
friction, slow judicial process can be observed, even in integral matters with respect to
interpretation of statutes.

In 2018, the State Cabinet recommended the release of the Perarivalan and other convicts,
however, the Governor failed to act for almost 2 and half years after which, he referred the
matter to the President. There are no such provisions for the Governor to refer a
recommendation made by the State Cabinet, the Constitution acknowledges a Corporative
Federalist Structure for smooth Governance. However, the Supreme Court had to intervene,
and exercised Article
8
Indian Penal Code, 1860, §320, ACT NO. 45 OF 1860
9
India Const. art. 20(2)
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 142 to release AG Perarivalan. Such actions by the Governor raises three objections;

Firstly, the Governor is bound the act on the advice of the council of ministers. In the case of
Maru Ram v. Union of India10 it was held that in matters pertaining to Article 161, the State
Government can advise and the Governor would be bound by it. In Samsher Singh v. State of
Punjab11, it was stated that ‘Governor’ was a ‘shorthand expression’ for the State
Government, hence his actions should be congruous to the recommendations by the Council of
Ministers. The Governor is the positional head, or “rubber stamp” for the State, while the
executive role is in the hands of the Council of Ministers. He is the “hyphen or buckle that
fastens legislative part to the executive part of the State.” 12 He enjoys the immunity under
Article 361(1)13 only because he is in a way bound to act on the advice of Council of
Ministers. This ensures democracy and the true elements of corporative federalism.

Secondly, the Governor is bound to perform his duties and roles, this extends to considering
matters of Article 161 prudentially, he cannot take advantage of not being timely bound to act,
in Epuru Sudhakar v. Govt. of A.P.14, it was held that for the non-exercise of power under
Article 161, the Governor can be subjected to judicial review.

Lastly, Article 161 is sufficient to govern such matters and Governor had the authority. The
Federal Structure ensures harmony and autonomy in each state, Article 142 can be used only
for the purpose of ensuring ‘complete justice, as held in Chandrakant Patil & Ors v State 15.
Matters in which the State has jurisdiction could be solved within the state, hence not
undermining the federal structure.

On viewing this case beyond determining the Appropriate Government that should yield its
executive power and the fallacies displayed by the Governor by “pocketing” the Tamil Nadu
Cabinet’s recommendation, Perarivalan had served about 31-32 years in prison, where there
have been instances of the Courts releasing prisoners after serving 25 years. The right to
equality, as mentioned in the Article 1416 needed to be served and the Supreme Court’s
intervention helped lay precedence on the active role the judiciary to provide for justice.

10
Maru Ram v. Union of India (1981) 1 SCC 161
11
Samsher Singh v. State of Punjab (1974) 2 SCC 831
12
Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225
13
India Const. art. 161(1)
14
Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, (2006) 8 SCC 161
15
Chandrakant Patil & Ors v State Criminal Appeal NO. 486 OF 1997
16
India Const. art. 14
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 CONCLUSION
This recent case has been very prevalent in the news due to its various political interventions
yet it serve as a benchmark, commending the Corporative Federal Structure of India. A.G.
Perarivalan had served his sentence beyond what was required and was released because of
the Supreme Court’s intervention, the Supreme Court held that Governor’s ‘inordinate’ delay
could raise the need for judicial review and the scope of exercising the executive authority
between the Centre and Union in criminal matters will serve as strong precedence in future
cases.

India is a diverse country with a very robust legal system, however due to its legislative
burden, justice may not be served equitably, however when certain technicalities are
interpreted in a harmonious manner and people having authority do not abuse thSeir post, and
justice can prevail.