President the “competent authority” to decide release of convicts in Rajiv assassination case, states Tamil Nadu Governor before Supreme Court

Published : February 05, 2021 17:46 IST

A.G. Perarivalan, a file picture. Photo: C. Venkatachalapathy

Nearly 30 months after the Council of Ministers of the Tamil Nadu government recommended to Governor Banwarilal Purohit the release A.G. Perarivalan and six other convicts in the Rajiv Gandhi assassination case under Article 161 of Constitution, the Governor has refused to either reject or endorse the recommendation. Former Prime Minister Rajiv Gandhi was killed by a human bomb of the Liberation Tigers of Tamil Eelam (LTTE) at Sriperumbudur near Chennai in 1991.

The Governor, according to an affidavit filed by the Union Ministry of Home Affairs before the Supreme Court, on February 4, “recorded that the Hon’ble President of India is the appropriate competent authority to deal with the said request for remittance matter vide his order dated 25-01-2021”. The Governor, the affidavit said, had “considered all the facts on record and after the perusal of the relevant documents...” on the issue. The Ministry informed the Supreme Court, which is hearing an application from Perarivalan under his Special Leave Petition (SLP), 2016, that “the proposal received by the Central Government will be processed in accordance with law”.

Nasim Khan, Deputy Secretary, Ministry of Home Affairs, who filed the Governor’s decision as the affidavit, said that “pertinently the offence committed… resulted in the killing of 18 innocent individuals (including the former Prime Minister of India) and further causing serious injuries to 43 other persons”.

Since it is a case of utmost sensitivity and has been probed by a central agency such as the Central Bureau of Investigation (CBI), the Governor was reluctant to take a decision though Article 161 of the Constitution mandates him to do so. The Article stipulates, “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

Instead, the Governor chose to place the issue before the President, who has powers under Article 72 of the Constitution since the case was investigated by a Central agency. Article 72 empowers the President “to grant pardons, etc., and to suspend, remit or commute sentences in certain cases (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence (a) in all cases where the punishment or sentence is by a court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death.”

While the Constitution of India through Articles 72 and 161 embodies reformative principles by allowing the President of India and the Governor of a State to suspend, remit or commute sentences of convicts, Section 432 of the Code of Criminal Procedure (CrPC) has laid down procedures and preconditions for such release. Section 433-A of the CrPC is against the release of persons sentenced to life imprisonment until they have served at least 14 years of their sentence.

Legal experts told Frontline that the Governor had two options: either return the Council of Ministers’ recommendation to the government seeking further inputs or accept the remission proposal since his constitutional authority does not vest in him the power to reject. Governor Banwarilal Purohit, however, preferred a new option, that of placing the issue before the President, thus triggering a fresh debate on legal and constitutional issues relating to the powers of the Governor and the President.

Supreme Court directions

In fact, this decision of the Governor two and half years after the Tamil Nadu government’s recommendation on the release of seven convicts was sent to him under Article 161 of the Constitution, had come because of a strong Supreme Court intervention on the application filed by Perarivalan in his SLP (2016) seeking his release. He told the court that the constitutional authority was sitting over his remission for long without taking any decision. The court, on January 21, reacting sharply, said the delay [by the Governor] was “extraordinary” and asked the Centre and State governments about the status of the remission application of the petitioner.

The Centre argued that the convict could be released only by the President, against which the petitioner’s counsels senior advocate Gopal Sankaranarayanan and advocates Prabu Ramasubramanian and Parivendhar objected strongly. They said that it was “unprecedented” and pointed out that the “exercise of executive clemency” was vested either with the President or with the Governor. Hence, the Governor could decide on the recommendation, they argued.

The next day, the Union government, through Solicitor General Tushar Mehta, informed the court that since the mercy petition under Article 161 of the Constitution was pending before the Tamil Nadu Governor, he would decide the remission in three or four days. The Supreme Court accordingly asked the Governor to take a decision within a week and posted the case after two weeks. Following this the Governor has told the Centre that only the President can decide on the issue.

A long battle

On February 19, 2014, the then Tamil Nadu government headed by Jayalalithaa, in an emergency Cabinet meeting, invoked its powers under Section 432 of the CrPC and recommended to the Centre the release of all the convicts. She referred the issue to the Centre saying that it was mandatory for the State to consult the Centre because the case was investigated by the CBI.

Subsequently, the present government, by a resolution dated September 9, 2018, decided to release the convicts invoking its powers under Article 161 and recommended the same to the Governor for his approval. The said resolution has been pending with the Governor since then in spite of the Supreme Court’s order directing the State government to inform it whether any decision has been taken.

Tamil Nadu told the Supreme Court that the Governor had informed it that he was waiting for the final report of the Multi Disciplinary Monitoring Committee (MDMA) of the CBI that was probing various other angles in the assassination case. But the MDMA in its affidavit filed in January informed the court that the remission of convicts was in no way connected to its probe.

The Designate Court No.1 under TADA Act, 1987, Madras, awarded the death sentence in 1998 to all seven accused, including Perarivalan, in the case. The Supreme Court, in 1999, upheld the death sentence. While Nalini’s death sentence was commuted to life in 2000 by the Tamil Nadu government, the Supreme Court, in 2014, commuted the sentences of the others to life on the grounds that the Central government had taken too long to decide their mercy pleas.

Perarivalan aka Arivu, the son of a Tamil poet Kuyildasan and Arputhamal, was 19 years old when he was arrested on June 18, 1991. His crime was that he supplied the two 9-Volt batteries, which were reportedly used in the belt bomb that the suicide bomber Dhanu wore. The CBI officer V. Thiagarajan, who recorded the confession statement of Perarivalan, filed an affidavit before the court that he had not recorded the statement fully and had omitted inadvertently Perarivalan’s claim that he was not aware of the purpose for which the batteries had been bought.

Setback for AIADMK

However, the Governor’s refusal to take a call on the issue was considered a setback for the ruling AIADMK. Chief Minister Edappadi K. Palaniswami told the Assembly on February 4 that he was “confident of the Governor taking a good decision” on the issue of remission of seven convicts, Murugan, Santhan, Nalini, A.G. Perarivalan, Robert Pyas, Jayakumar and Ravichandran. On January 29, the Chief Minister had called on the Governor at the latter’s residence and made a plea on the remission issue. The Governor, according to Fisheries Minister D. Jayakumar, who was a member of the Chief Minister’s delegation, told them that he would announce a decision on it soon.

State Law minister C.Ve. Shanmugam told the media that the legality of the issue had to be studied. The Governor’s decision had also received flak from various political parties. Vaiko of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) called it a drama of deceit by the All India Anna Dravida Munnetra Kazhagam (AIADMK), the Bharatiya Janata Party (BJP) and the Governor. Dravida Munnetra Kazhagam (DMK) president M.K. Stalin asked the Chief Minister not to stage a drama on this sensitive issue. He said his MPs would be ready to accompany the Chief Minister if he wished to meet the President in this regard. The Communist Party of India (CPI) and the Pattali Makkal Katchi (PMK) also condemned the delay in releasing the convicts.

Meanwhile, the seven convicts have completed 29 years in prison for the assassination.

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