The Supreme Court in Monday extended the parole period for Rajiv Gandhi assassination case convict A.G. Perarivalan by a week.
He had been on parole since November 9 . It was scheduled to end on November 23.
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Senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, for Perarivalan, informed a Bench led by Justice L. Nageswara Rao that the convict was not given police escort for a medical visit to the hospital. The court ordered that Perarivalan be given police escort.
Convict’s choice
During the short hearing, the Centre raised a point of debate about the Tamil Nadu Governor’s power to grant remission to Perarivalan under Article 161 of the Constitution. Significantly, this submission comes on the heels of a CBI affidavit that said it was entirely up to the Governor to pardon Perarivalan.
Mr. Sankaranarayanan objected to this, arguing that the convict was free to choose between the President and the Governor for pardon. The senior advocate referred to the Constitution Bench’s judgment in the Union of India versus Sriharan of December 2015, which said the “exercise of executive clemency” is “vested in the President or the Governor.”
Mr. Sanakaranarayanan said the Centre’s rejection, in April 2018, of the Tamil Nadu government’s proposal to remit the sentence of convicts under Section 432 of the Code of Criminal Procedure (CrPC) did not stop them from separately moving the Governor for pardon under Article 161 of the Constitution.
He said the power of State or Central governments to remit sentences under Section 432 CrPC and the clemency power of the President or the Governor could not be equated with each other. Section 432 was a “creature of the Code [CrPC].” Articles 72 (power of President to grant pardon) or 161, on the other hand, was a “high prerogative vested by the Constitution in the highest functionaries of the Union and the States.”
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Sriharan judgment
The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes,” Mr. Sankaranarayanan said quoting from the Sriharan judgment. The Constitution Bench, in a majority decision, had held that States could not unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law. The assassination case was probed by the CBI.
Demand for release of Rajiv Gandhi assasination case convicts: A timeline
In compliance with the 2015 verdict, the Tamil Nadu government had written to the Centre on March 2, 2016, proposing the grant of remission to the convicts. The State government wanted the Centre to concur. After a wait of over two years, the Centre, in April 2018, rejected the State’s proposal to release the convicts on remission, saying this was an act unparalleled in the annals of crimes committed in this country.
Meanwhile, Perarivalan applied to the Governor for pardon on December 30, 2015.
On September 2018, after the Centre’s rejection of the State’s remission proposal, the Supreme Court asked the Governor to decide the pardon plea as he “deemed fit.” Three days after this court order, on September 9, the Tamil Nadu Cabinet recommended to the Governor to remit Perarivalan’s sentence and release him forthwith.
The pardon plea has been pending with the Governor for nearly five years now.
