Advice of State Cabinet binding on Guv in remission matters under Article 161: SC

The advice of the State Cabinet is binding on the Governor in matters relating to commutationremission of sentences under Article 161 of the Constitution, the Supreme Court said on Wednesday.A three-judge bench headed by Justice L Nageswara Rao, however, said the top court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds.


PTI | New Delhi | Updated: 18-05-2022 21:48 IST | Created: 18-05-2022 21:48 IST
Advice of State Cabinet binding on Guv in remission matters under Article 161: SC
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The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161 of the Constitution, the Supreme Court said on Wednesday.

A three-judge bench headed by Justice L Nageswara Rao, however, said the top court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds. Non-exercise of the power under Article 161 is not immune from judicial review, it said.

''The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor's power to refer a recommendation made by the State Cabinet to the President of India,'' the bench also comprising Justices B R Gavai and A S Bopanna said.

The top court also said the Governor enjoys immunity under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties. The observations came on a judgement in which the top court ordered the release of A G Perarivalan, who has served over 30 years in jail in the Rajiv Gandhi assassination case invoking its extraordinary power under Article 142 of the Constitution.

The apex court said in the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President and such action is contrary to the constitutional scheme. ''It is relevant to point out that the recommendation made by the State Cabinet was on September 9, 2018, which remained pending before the Governor for almost two and a half years without a decision being taken. ''It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for the remission of the appellant's sentence to the President,'' the bench said.

The top court said that given petitions under Article 161 pertaining to the liberty of individuals, inexplicable delay, not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission /commutation of his sentence.

On March 9, the top court had granted bail to Perarivalan while taking note of his long incarceration and no history of complaints when out on parole. The top court has been hearing pleas including the one in which Perarivalan sought suspension of his life sentence in the case till the Multi-Disciplinary Monitoring Agency (MDMA) probe is completed.

The CBI, in its affidavit of November 20, 2020, had told the apex court that the Tamil Nadu governor has to take a call on grant of remission to Perarivalan. Later, the governor referred the mercy plea to the President saying he does not have the power to decide it.

The mercy plea has been pending since then and the apex court said till the time the legal issue over the power to grant remission is decided, it would grant the bail to the convict.

The CBI had said Perarivalan was not the subject matter of further investigation carried out by the CBI-led MDMA which is conducting a probe on the aspect of a larger conspiracy as per the mandate of the Jain Commission report.

The Jain commission of inquiry in the assassination of the former prime minister has recommended a probe into the larger conspiracy by MDMA, and it required monitoring /tracking of absconding suspects and the role of Sri Lankan and Indian nationals in the case.

The state government had earlier told the top court that the Cabinet had already passed a resolution, on September 9, 2018, recommending to the governor to prematurely release all seven convicts in the case.

The MDMA was set up in 1998 on the recommendations of the Justice M C Jain Commission of Inquiry which had probed the conspiracy aspect of Gandhi's assassination.

Gandhi was assassinated on the night of May 21, 1991, at a poll rally in Tamil Nadu's Sriperumbudur by a woman suicide bomber, identified as Dhanu. Fourteen others, including Dhanu herself, were also killed.

Gandhi's assassination was probably the first case in the country of suicide bombing which had claimed the life of a high-profile leader. In its May 1999 order, the top court had upheld the death sentence of four convicts -- Perarivalan, Murugan, Santham, and Nalini.

In April 2000, the Tamil Nadu governor commuted the death sentence of Nalini on the basis of the state government's recommendation and an appeal by former Congress president and Rajiv Gandhi's widow Sonia Gandhi.

On February 18, 2014, the top court commuted the death sentence of Perarivalan to life imprisonment, along with that of two other prisoners -- Santhan and Murugan -- on the grounds of an 11-year delay in deciding their mercy pleas by the Centre.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)

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