The Supreme Court used its extraordinary powers under Article 142 of the Constitution and directed the release of A.G. Perarivalan in Rajiv Gandhi’s assassination case.
Image source: The Hindu
- The Supreme Court bench in its judgment acknowledged Perarivalan’s long incarceration for over 30 years to order his release.
- Earlier, the court had commuted his death penalty to a life sentence for murder in 2014 and had observed that the apex constitutional authorities like the President and the Governor must exercise their clemency powers under Articles 72 and 161, respectively, within the “bounds of constitutional discipline” and in an “expeditious manner”.
- Saying that the Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review, the SC bench held that the Governor’s delay in the Perarivalan’s pardon decision has compelled the court to use its extraordinary constitutional powers under Article 142.
Article 142 of the Constitution
- Article 142 was introduced to uphold the interests of justice.
- Article 142 provides an extraordinary authority to the Supreme Court, to do “complete justice” at times when the law or statute fails to provide a remedy.
- In such situations, the Court can end the dispute in a manner that would fit the facts of the case.
- According to Article 142, “The Supreme Court in the exercise of its jurisdiction may pass such as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
- It also provides that “the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”.
- Article 142 supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
The Supreme Court’s views
- The court ruled that the Tamil Nadu Council of Ministers’ advice tendered in 2018 to pardon Perarivalan was binding on the Governor under Article 161 of the Constitution and the Governor did not have the authority to forward the pardon plea to the President after holding it for years.
- SC rejected the Centre’s argument that the President alone had the power to grant pardon in a case under Section 302 (murder) of the IPC and not the Governor.
- The court said that such exclusive powers to the President would make Article 161 a “dead letter” and would create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be made invalid.
- Referring to the judgment in the Union of India vs Sriharan 2015 case, the court said that Section 432(7)(a) of the Code of Criminal Procedure (CrPC) gave primacy to the Union and not the States when the case was tried under a law to which the executive power of the Union extended to and helps that the “exercise of executive clemency” was “vested in the President or the Governor”.