Many governors have misused their gubernatorial power of authority and functioned as the Union Government’s spies. This essay will address the Supreme Court’s ruling in ag perarivalan vs state, which exposes abuses of the governor’s authority.
In a speech to the Constituent Assembly, B.R. Ambedkar stated that the Governor is not granted any authority by the Constitution to carry out any duties on his own. Even though he doesn’t exist, he still has tasks to complete. The people who took up this role after independence have fallen short of the expectations of the Constitution’s founders, even though the document defines the Governor as a formal head who, unless otherwise stated, can only act on the recommendation of the Council of Ministers.
ag perarivalan vs state: Background of the Case
· When 19-year-old A.G. Perarivalan was detained in 1991, he was charged with providing Sivarasan, the head of the plot to kill former prime minister Rajiv Gandhi, with two 9-volt batteries.
· Perarivalan’s conviction and sentencing under the Terrorism and Disruptive Activities (Prevention) Act were overturned, but his 1998 death sentence from the TADA court was confirmed by the Supreme Court in 1999.
· Eleven years later, in 2011, Perarivalan petitioned the President for mercy, but it was denied. The death penalty was remitted by the Supreme Court in 2014 when it was determined that the delay had violated the procedural due process rights protected by article 21 of the indian constitution.
· The Tamil Nadu government ordered the release of all seven convicts, including Perarivalan, in 2014 under section 432 of the CrPC, which deals with the authority of federal and state governments to remit or suspend sentences.
· However, the Supreme Court delayed the release. In 2015, Perarivalan again petitioned the Tamil Nadu governor for remission under article 161 of the indian constitution.
· The Tamil Nadu government officially requested the remission of all seven convictions in an official proposal addressed to the Union government in 2016. However, the motion was denied in 2018 with the government claiming that “releasing killers of former PM will set a very dangerous precedent.” The convicts don’t deserve to be released because multiple judicial and governmental venues have rendered decisions on the matter.”
· A motion to free all seven convicts under article 161 of the indian constitution, including Perarivalan, was passed by the Tamil Nadu State Cabinet on September 9, 2018, and it was forwarded to the Governor. The State cabinet’s resolve and Perarivalan’s 2015 remission appeal were not ruled upon by the Tamil Nadu governor.
· He filed a motion for his sentence to be suspended with the Supreme Court. After deliberating on the resolution for almost 2.5 years, the Governor of Tamil Nadu forwarded it to the President in January 2021, stating that the President is the qualified authority to make a judgment based on the State Cabinet’s proposal.
ag perarivalan vs state Case Facts
· A.G. Perarivalan, the appellant who was found guilty of playing a role in the assassination of former Prime Minister Rajiv Gandhi, petitioned the Supreme Court to have his sentence suspended.
· The court granted his request, citing delays in filing his remission petition and medical reasons, following the state government’s proposal under article 161 of the indian constitution, which had been pending governor approval for 2.5 years.
· The governor withheld the request from the president until the supreme court began to probe the cause of the postponement.
ag perarivalan vs state Issues
· Is the advise provided by the State Cabinet legally binding in accordance with article 161 of the indian constitution?
· Was the governor right to bring up the president in this particular matter?
· Does judicial review apply when powers underlying article 161 of the indian constitution are not exercised?
Contentions by the Parties
Appellant:
· The appellant argued that the governor ought to have made the decision about the state cabinet’s remission suggestion.
· Furthermore, the governor was not authorized to forward the state cabinet’s suggestion to the president.
· The governor is obligated to follow the State Cabinet’s recommendations, and at most, he may have asked the Cabinet to reevaluate its choice.
· It argued that any pardon granted by the governor would be unlawful under Article 161 if the respondents’ logic, according to which the president of India is the appropriate authority, is to be accepted.
· In support of the appellants, the state of Tamil Nadu’s counsel stated that the same court has noted in multiple judgments that, absent a specific provision in the constitution, the governor is bound by the Council of Ministers’ opinion under articles 161 and 163. Additionally, he argued that the proper course of action in cases of excess jurisdiction is to go to court rather than delay unnecessarily, which would go against the nation’s federal system.
Respondent:
· The defendant argued that the President of India is the proper government authority in this case, and that the governor is not always required to act on the advice of the state cabinet. In certain recognized exceptions, however, he is free to act independently and reach a different decision.
· Additionally, he argued that the recommendation’s reference to the Indian President should not be taken into consideration because it is outside the purview of the writ suit.
ag perarivalan vs state: Ration Decidendi
· In rendering its decision, the court noted that India had chosen a parliamentary system of government, meaning that while the president and governor have ultimate authority over all matters, they are required to use that authority with the support and counsel of the Council of Ministers, which is presided over by the prime minister and chief minister, respectively.
· Only the jurisdictions specified by the constitution are subject to the governor’s discretion.
· The court further noted that as the petitions under Article 161 pertain to an individual’s liberty, an excessive delay in reaching a decision will result in both physical and mental suffering once the state cabinet has made the decision to grant the person’s release.
· Since the State cabinet’s advice did not take into account any relevant circumstances, the court rejected the claim that the governor has discretionary power in this particular case.
ag perarivalan vs state Judgment
In ruling on the appeal, the court determined that:
· In situations pertaining to the commutation or remission of penalties under Article 161, the Governor is bound by the advice presented by the State Cabinet.
· Since the governor is a shorthand for the state government and it is accepted that the executive power of the state extends to section 302 IPC, under which it is a subject matter of Entry 1 of list III, the governor was not authorized to submit the recommendation to the President of India. This is because the decision lacked constitutional backing.
· judicial review is applicable to the failure to exercise authority under Article 161 or the unexplained postponement of exercising such authority that is not due to the prisoner, particularly in cases where the State Cabinet has already recommended the governor take such action.
ag perarivalan vs state: Case Analysis
· The Court correctly reaffirmed its stance on the Governor’s authority by citing Maru Ram v. Union of India and Shamsher Singh v. State of Punjab. The Governor, who is the head of state by virtue of the Constitution, uses all of his duties with the assistance and advice of the Council of Ministers, which is presided over by the Chief Minister unless the Constitution requires him to use his discretion.
· Since the Governor is required by Article 161 to heed the advice of the State Cabinet, the recommendation of the State Cabinet dated 09.09.2018 for the release of A.G. Perarivalan applied in this case.
· By delivering the State Cabinet’s suggestion to the President, even after sitting on it for 2.5 years, the Governor of Tamil Nadu violated the Constitution to the utmost. A state governor acting in such a manner would be in violation of federalism, which is a fundamental component of the Constitution.
· Courts’ ability to examine decisions made by the President or Governor under Article 161 or 72 of the Constitution is restricted. The courts have extremely limited authority to intervene in cases involving orders granted under Article 161, such as where there is an unreasonable order or when important material is not taken into consideration.
· The Supreme Court cited Epuru Sudhakar v. Govt. of A.P. to uphold the previous decision that measures taken in accordance with Article 161 are susceptible to judicial review due to lack of exercise of authority.
· After considering A.G. Perarivalan’s 32-year jail sentence, his exemplary behavior both inside and outside the jail, his medical circumstances, his certificates and courses taken while incarcerated, and other factors, the court decided to release him.
· Due to the Tamil Nadu Governor’s over 2.5-year delay, the Court decided to use its Article 142 authority to release Perarivalan instead of remanding the case for the Governor to consider. Whether the court is correct in using its authority under Article 142 is the question that can be posed in this situation.
· The Supreme Court’s authority granted by Article 142 is still vague and unclear. Generally speaking, the authority is employed to close legislative gaps and provide relief in certain situations where the reach of relevant statute law is limited.
· Because the Governor enjoys personal immunity and neither the fulfilment of the Governor’s constitutional duties nor their non-performance could be subject to judicial scrutiny, the court properly invoked Article 142’s powers to provide Perarivalan with full justice in this case.
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