Reasons given by supreme court for the exercise of Article 142 of constitutin in perarivalan case

 

REASONS GIVEN BY SUPREME COURT FOR THE EXERCISE OF ARTICLE 142 OF CONSTITUTION OF INDIA IN PERARIVALAN CASE

 

List of cases have been referred, wherein this Court, in the specific facts and circumstances of those cases, has directed release of the prisoner convicted under Section 302 simpliciter or along with other offences, taking note of the prolonged period of incarceration, educational qualifications obtained during the period of incarceration, conduct in jail as well as the futility of subjecting the prisoners to another round of litigation.The Appellant was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that the Appellant had been released on parole, there had been no

complaint regarding his conduct or breach of any condition of

release. Medical records, filed on behalf of the Appellant,

show that he is suffering from chronic ailments. Apart from

his good behaviour in jail, the Appellant has also educated

himself and successfully completed his +2 exams, an

undergraduate degree, a postgraduate degree, a diploma

and eight certification courses. Given that his petition under

Article 161 remained pending for two and a half years

following the recommendation of the State Cabinet for

remission of his sentence and continues to remain pending

for over a year since the reference by the Governor, and it is not appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under

Article 142 of the Constitution, the supreme court  that the Appellant is deemed to have served the sentence in connection with

Crime No. 329 of 1991. The Appellant, who is on bail, is set

at liberty forthwith. In conclusion, findings are summarised as below:

(a) The law laid down by a catena of judgments of the supreme Court

is well-settled that the advice of the State Cabinet is

binding on the Governor in the exercise of his powers

under Article 161 of the Constitution.

(b) Non-exercise of the power under Article 161 or

inexplicable delay in exercise of such power not

attributable to the prisoner is subject to judicial review

by the supreme Court, especially when the State Cabinet has

taken a decision to release the prisoner and made

recommendations to the Governor to this effect.

(c) The reference of the recommendation of the Tamil Nadu

Cabinet by the Governor to the President of India two

and a half years after such recommendation had been

made is without any constitutional backing and is

inimical to the scheme of our Constitution, whereby “the

Governor is but a shorthand expression for the State

Government” as observed by this Court9.

(d) The judgment of apex Court in M.P. Special Police

Establishment (supra) has no applicability to the facts

of this case and neither has any attempt been made to

make out a case of apparent bias of the State Cabinet or

the State Cabinet having based its decision on irrelevant

considerations, which formed the fulcrum of the said

judgment.

(e) The understanding sought to be attributed to the

judgment of apex Court in Sriharan (supra) with respect

to the Union Government having the power to remit /

commute sentences imposed under Section 302, IPC is

incorrect, as no express executive power has been

conferred on the Centre either under the Constitution or

law made by the Parliament in relation to Section 302. In

the absence of such specific conferment, it is the

executive power of the State that extends with respect

to Section 302, assuming that the subject-matter of

Section 302 is covered by Entry 1 of List III.

(f) Taking into account the Appellant’s prolonged period of

incarceration, his satisfactory conduct in jail as well as

during parole, chronic ailments from his medical records,

his educational qualifications acquired during

incarceration and the pendency of his petition under

Article 161 for two and a half years after the

recommendation of the State Cabinet, it is not fit to remand the matter for the Governor’s consideration. In exercise of our power under Article 142 of the Constitution, the supreme court directs that the Appellant is

deemed to have served the sentence in connection with

Crime No. 329 of 1991. The Appellant, who is already on

bail, is set at liberty forthwith. His bail bonds are

cancelled. The Appeals are disposed of accordingly.