A.G. PERARIVALAN versus STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/ MMDA, CHENNAI, TAMIL NADU AND ANR. on 18 May 2022

SUPREME COURT REPORTS

[2022] 7 S.C.R.

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A.G. PERARIVALAN

v.

STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/MMDA, CHENNAI, TAMIL NADU AND ANR.

B(Criminal Appeal Nos. 833-834 of 2022)

MAY 18, 2022

[L. NAGESWARA RAO, B. R. GAVAI AND A. S. BOPANNA, JJ.]

Constitution of India: Art. 161 – Power of Governor to grantpardons, etc, and to suspend, remit or commute sentences in certainCcases – Appellant, one of the accused in assassination of the formerPrime Minister of India-Shri Rajeev Gandhi – Convicted andsentenced to death – Death sentence commuted to life imprisonment– As regards, remission of the sentence of the appellant, referencemade by the Governor to the President of India on 25.01.2021,Dwithout taking a decision on the recommendation made by the StateCabinet on remission of the sentence of the appellant – Correctnessof – Held: The advice of the State Cabinet is binding on the Governorin matters relating to commutation / remission of sentences u/Art.161– Non-exercise of the power u/Art. 161 or inexplicable delay inexercise of such power not attributable to the prisoner is subject toEjudicial review, especially when the State Cabinet has taken adecision to release the prisoner and made recommendations to theGovernor to this effect – No provision under the Constitution pointedout nor any source of the Governor’s power to refer arecommendation made by the State Cabinet to the President of IndiaFshowed – In the instant case, the Governor ought not to have sentthe recommendation made by the State Cabinet to the President ofIndia – Such action is contrary to the constitutional scheme –Recommendation made by the State Cabinet remained pendingbefore the Governor for almost two and a half years without adecision being taken – Only when this Court started enquiring aboutGthe reason for the decision being delayed, the Governor forwardedthe recommendation made by the State Government for remission ofthe appellant’s sentence to the President of India – Furthermore,having regard to the appellant’s incarceration for 32 years, nocomplaint relating to his conduct in jail, his chronic ailments fromHhis medical records, his educational qualifications acquired during A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICECBI/SIT/MMDA, CHENNAI, TAMIL NADU

incarceration and the pendency of his petition u/Art. 161 for twoand a half years after the recommendation of the State Cabinet, it isnot fit to remand the matter for the Governor’s consideration – Inexercise of power u/Art. 142, the appellant is deemed to have servedthe sentence – Appellant is set at liberty forthwith – Penal Code,1860 – Arms Act, 1951 – Explosive Substances Act, 1908 – PassportAct,1967 – Foreigners Act,1946 – Wireless Telegraphy Act,1933 –Terrorist and Disruptive Activities (Prevention) Act, 1987.

Disposing of the appeals, the Court

HELD: 1.1 The advice of the State Cabinet is binding onthe Governor in matters relating to commutation / remission ofsentences under Article 161. No provision under the Constitutionhas been pointed out nor any satisfactory response tendered asto the source of the Governor’s power to refer a recommendationmade by the State Cabinet to the President of India. In the instantcase, the Governor ought not to have sent the recommendationmade by the State Cabinet to the President of India. Such actionis contrary to the constitutional scheme elaborated above. It isrelevant to point out that the recommendation made by the StateCabinet was on 09.09.2018, which remained pending before theGovernor for almost two and a half years without a decision beingtaken. It was only when this Court started enquiring about thereason for the decision being delayed, the Governor forwardedthe recommendation made by the State Government for remissionof the Appellant’s sentence to the President of India. [Para19][1059-E-G]

1.2 This Court is conscious of the immunity of the Governorunder the Constitution with respect to the exercise andperformance of the powers and duties of his office or for any actdone or purported to be done by him in the exercise andperformance of such powers and duties. This Court has the powerof judicial review of orders of the Governor under Article 161,which can be impugned on certain grounds. Non-exercise of thepower under Article 161 is not immune from judicial review. Givenpetitions under Article 161 pertain to the liberty of individuals,inexplicable delay not on account of the prisoners is inexcusableas it contributes to adverse physical conditions and mentaldistress faced by a prisoner, especially when the State Cabinet

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Ahas taken a decision to release the prisoner by granting him thebenefit of remission / commutation of his sentence. [Para20][1060-A-C]

1.3 The Appellant was 19 years of age at the time of hisarrest and has been incarcerated for 32 years, out of which heBhas spent 16 years on the death row and 29 years in solitaryconfinement. There has been no complaint relating to his conductin jail. On the two occasions that the Appellant had been releasedon parole, there had been no complaint regarding his conduct orbreach of any condition of release. Medical records, filed on behalfof the Appellant, show that he is suffering from chronic ailments.CApart from his good behaviour in jail, the Appellant has alsoeducated himself and successfully completed his +2 exams, anundergraduate degree, a postgraduate degree, a diploma and eightcertification courses. Given that his petition under Article 161remained pending for two and a half years following theDrecommendation of the State Cabinet for remission of hissentence and continues to remain pending for over a year sincethe reference by the Governor, it is not appropriate to remandthe matter for the Governor’s consideration. In the absence ofany other disqualification and in the exceptional facts andcircumstances of this case, in exercise of the power under ArticleE142 of the Constitution, the appellant is deemed to have servedthe sentence in connection with Crime No. 329 of 1991. Theappellant, who is on bail, is set at liberty forthwith. [Para 28][1065-B-E]

1.4. The advice of the State Cabinet is binding on theFGovernor in the exercise of his powers under Article 161 of theConstitution. Non-exercise of the power under Article 161 orinexplicable delay in exercise of such power not attributable tothe prisoner is subject to judicial review by this Court, especiallywhen the State Cabinet has taken a decision to release theGprisoner and made recommendations to the Governor to thiseffect. The reference of the recommendation of the Tamil NaduCabinet by the Governor to the President of India two and a halfyears after such recommendation had been made is without anyconstitutional backing and is inimical to the scheme of ourConstitution, whereby “the Governor is but a shorthandH

A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICECBI/SIT/MMDA, CHENNAI, TAMIL NADU

expression for the State Government”. Neither has any attemptbeen made to make out a case of apparent bias of the State Cabinetor the State Cabinet having based its decision on irrelevantconsiderations, which formed the fulcrum of the said judgment.The understanding sought to be attributed to the judgment ofthis Court in Sriharan’s case with respect to the UnionGovernment having the power to remit / commute sentencesimposed under Section 302, IPC is incorrect, as no expressexecutive power has been conferred on the Centre either underthe Constitution or law made by the Parliament in relation toSection 302. In the absence of such specific conferment, it is theexecutive power of the State that extends with respect to Section302, assuming that the subject-matter of Section 302 is coveredby Entry 1 of List III. Taking into account the appellant’s prolongedperiod of incarceration, his satisfactory conduct in jail as well asduring parole, chronic ailments from his medical records, hiseducational qualifications acquired during incarceration and thependency of his petition under Article 161 for two and a half yearsafter the recommendation of the State Cabinet, it is notconsidered fit to remand the matter for the Governor’sconsideration. In exercise of power under Article 142 of theConstitution, the appellant is deemed to have served thesentence in connection with Crime No. 329 of 1991. The appellant,who is already on bail, is set at liberty forthwith. [Para 29][1065-F-H; 1066-A-G]

M.P. Special Police Establishment v. State of M.P. (2004)8 SCC 788 : [2004] (5) Suppl. SCR 1020 - distinguished.

Union of India v. Sriharan (2016) 7 SCC 1 : [2015](14) SCR 613; Rai Sahib Ram Jawaya Kapur v. Stateof Punjab (1955) 2 SCR 225; Samsher Singh v. Stateof Punjab (1974) 2 SCC 831 : [1975] (1) SCR 814;Nabam Rebia and Bamang Felix v. Deputy Speaker,Arunachal Pradesh Legislative Assembly (2016) 8 SCC1 : [2016] (6) SCR 1; Maru Ram v. Union of India(1981) 1 SCC 161; Samsher Singh v. State of Punjab(1974) 2 SCC 831 : [1975] (1) SCR 814; EpuruSudhakar v. Govt. of A.P. (2006) 8 SCC 161 : [2006](7) Suppl. SCR 81 - referred to.

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Case Law Reference

From the judgment and order dated 06.03.2015 of the High Courtof Judicature at Madras in Crl. O.P.S.R. No. 4084/2015 and Crl. O.P.DNo. 5073/2015.

With

Criminal Appeal No. 835 of 2022

Gopal Sankaranarayanan, Sr. Adv., Prabu Ramasubramanian, K.EPaari Vendhan, Raghunatha Sethupathy.B., Vishnu Unnikrishnan, Ms.Shivani Vij, Ms. Priya R., Advs. for the Appellant.

Tushar Mehta, SG, K M Natraj, ASG, V. Krishnamurthy, AmitAnand Tiwari, AAGs, Rakesh Dwivedi, Sr. Adv., Ms. Rekha Pandey,T.A. Khan, Ashok Panigarhi, Ms. Vanshaja Shukla, Kanu Agrawal, Ms.Kirti Dua, Arvind Kumar Sharma, Dr. Joseph Aristotle S., EklavyaFDwivedi, Ms. Mary Mitzy, Ms. Devyani Gupta, Ms. Tanvi Anand, Ms.Nupur Sharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. JessicaBhardwaj, B.V. Balaram Das, G. Ananda Selvem, S. Muthukrishnan, T.Thirumurugan, P. Soma Sundaram, Advs. for the Respondents.

The Judgment of the Court was delivered byG

L. NAGESWARA RAO, J.

Leave granted.

1. Appellant is accused No.18 in Crime No. 329 of 1991 registeredat Sriperumbudur Police Station for assassination of Shri Rajeev Gandhi,Hformer Prime Minister of India, on 21.05.1991. The Appellant was

convicted for offences under the Indian Penal Code, 1860 (for short,‘IPC’), the Arms Act, 1951, the Explosive Substances Act, 1908, thePassport Act, 1967, the Foreigners Act, 1946, the Indian WirelessTelegraphy Act, 1933 and the Terrorist and Disruptive Activities(Prevention) Act, 1987 (for short, ‘TADA’). He was sentenced to deathby the designated TADA Court. This Court, by a judgment dated11.05.1999, upheld the conviction and sentence imposed on the Appellant.However, the conviction and sentence under the TADA were set aside.The review petition filed by the Appellant was dismissed by an orderdated 08.10.1999. The Appellant, along with three others, filed mercypetitions before the Governor of Tamil Nadu under Article 161 of theConstitution of India, which were rejected on 27.10.1999. The mercypetition of the Appellant was reconsidered by the Governor, pursuant toan order passed by the High Court of Tamil Nadu, and was rejectedagain on 25.04.2000. The Appellant filed a mercy petition before thePresident of India under Article 72 of the Constitution, which was alsorejected on 12.08.2011. Aggrieved thereby, a writ petition was filed inthe High Court of Madras. The said writ petition filed by the Appellantbefore the High Court of Madras was transferred to this Court by anorder dated 01.05.2012. Thereafter, the death sentence of the Appellantwas commuted to imprisonment for life by this Court on 18.02.2014. 2.In view of the Appellant having undergone a sentence of 23 years, theState of Tamil Nadu proposed remission of the sentence of lifeimprisonment imposed on the Appellant to the Government of India,requesting its views within three days. The said proposal was made inview of Section 435 of the Criminal Procedure Code, 1973 (for short,‘CrPC’), according to which the Central Government was required tobe consulted, as the case had been investigated by the Central Bureauof Investigation (CBI). The Union of India immediately filed criminalmiscellaneous petitions in the cases disposed of by this Court on18.02.2014, commuting the sentence imposed on the Appellant to lifeimprisonment. In these petitions, the Central Government sought adirection to the State of Tamil Nadu not to release the Appellant. Anorder of status quo was passed by this Court in the said criminalmiscellaneous petitions on 20.02.2014. The Review Petitions filed bythe Union of India against the judgment dated 18.02.2014 commutingthe sentence of the Appellant, were dismissed.

3. On 24.02.2014, the Union of India filed a writ petition forquashing the communication from the State of Tamil Nadu dated A

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A19.02.2014 and its decision to consider commutation / remission of thesentence imposed on the Appellant and some others. The writ petitionwas referred to a Constitution Bench of this Court by order dated25.04.2014, after formulating seven questions for consideration. By ajudgment dated 02.12.2015, this Court answered the questions that wereframed for consideration in Union of India v. Sriharan[1].B

4. On 30.12.2015, the Appellant filed a petition under Article 161of the Constitution for remission of his sentence. The writ petition filedby the Union of India for quashing the proposal of the State Governmentto grant remission to the Appellant was disposed of by this Court on06.09.2018, by taking note of the fact that a petition had been filed byCthe Appellant under Article 161 of the Constitution and giving liberty tothe authority concerned to dispose of the said petition as deemed fit. Aresolution was passed by the Tamil Nadu Cabinet on 09.09.2018,recommending the release of the Appellant, which was sent to theGovernor.D

5. In the meanwhile, the Appellant filed a criminal miscellaneouspetition before the designated TADA Court, Chennai praying for effectivemonitoring of the pending investigation of the assassination. The saidpetition was dismissed by the TADA Court on 10.12.2013, against whichthe Appellant approached the High Court under Section 482, CrPC, byEfiling a criminal original petition. Another criminal original petition wasfiled seeking direction to the CBI to complete the pending investigationexpeditiously and to file a status report before the High Court once everytwo months. The High Court dismissed both the petitions by separateorders on 06.03.2015, being of the opinion that the Appellant should haveapproached the Supreme Court. These Appeals have been filed againstFthe said orders passed by the High Court on 06.03.2015. Notice wasissued by this Court in Crl. M.P. No. 118421 of 2017 filed by the Appellantseeking suspension of sentence.

6. During the pendency of these Appeals, this Court was informedthat no decision has been taken by the Governor on the resolution passedGby the Tamil Nadu Cabinet on 09.09.2018, recommending release of theAppellant. On 11.02.2020, this Court directed the Additional AdvocateGeneral for the State of Tamil Nadu to get instructions on the status ofthe recommendation of the Council of Ministers to the Governor. During H1 (2016) 7 SCC 1

the course of hearing of applications filed for parole, the High Court wasinformed that the Governor has not taken a decision on therecommendation made by the State Cabinet pertaining to the remissionof the Appellant’s sentence, as the final report of the Multi-DisciplinaryMonitoring Agency (for short, ‘MDMA’) was awaited. The CBI filedan affidavit in these Appeals on 20.11.2020 informing this Court that norequest had been made by the Governor seeking report of the MDMAand that the petition filed under Article 161 can be decided on its ownmerits.

7. The learned Solicitor General of India appeared on 21.01.2021to inform this Court that a decision would be taken by the Governor onthe petition filed under Article 161 without any further delay. Thereafter,on 04.02.2021, an affidavit was filed by the Deputy Secretary, Ministryof Home Affairs, stating that the Governor had, by order dated25.01.2021, determined the President of India to be the appropriateauthority to decide the petition filed by the Appellant under Article 161and had forwarded the same, along with the recommendation made bythe Tamil Nadu cabinet, to the President of India.

8. By an order dated 09.03.2022, this Court released the Appellanton bail, taking into account the fact that the Appellant had spent morethan 31 years in jail, that his conduct in jail was good, he had acquiredseveral educational qualifications and was suffering from ill health.

9. On behalf of the Appellant, Mr. Gopal Sankaranarayanan,learned Senior Counsel, submitted that the recommendation made bythe State Cabinet to grant remission to the Appellant should have beendecided by the Governor. The Governor does not have power to referthe recommendation of the State Cabinet to the President of India. Hecontended that the recommendation made by the State Cabinet is bindingon the Governor and he cannot exercise independent discretion. At themost, the Governor could have requested the State Cabinet to reconsiderits decision but he lacked the jurisdiction or power to refer therecommendation made by the State Cabinet to the President of India, asunder Article 161 the Governor exercised power on the aid and adviceof the Council of Ministers. It was further submitted that if the argumentof the competent authority being the President of India is accepted, thenevery pardon / suspension granted by the Governor till date under Article161 would be unconstitutional.

10. Mr. Rakesh Dwivedi, learned Senior Counsel appearing forthe State of Tamil Nadu, supported the stand of the Appellant by arguing A

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Athat the scope of Articles 161 to 163 has been explained by more thanone Constitution Bench of this Court, according to which, unless expresslyprovided by the Constitution, the Governor is bound by the decision ofthe Cabinet of Ministers. If a decision made by the Governor on theadvice of the Council of Ministers is found to be beyond the jurisdictionof the State Government, it can always be challenged before constitutionalBcourts. However, the Governor is not constitutionally empowered to sitin judgment of the recommendation of the Council of Ministers. He furtherurged that there is no provision in the Constitution which enables theGovernor to refer the recommendation of the State Cabinet for thedecision of the President of India. Such actions of the Governor wouldCbe in violation of the federal structure of this country, which is a basicfeature of our Constitution.11. Mr. K. M. Natraj, learned Additional Solicitor General of India,submitted that the appropriate Government in the matter of remission /commutation in the present case is the Union of India. He sought support Dfrom certain passages of the judgment of this Court in Sriharan (supra)and argued that the Governor rightly referred the recommendation madeby the State Cabinet, as it is only the President of India who can take adecision on the remission / commutation of the sentence of the Appellant.He further contended that the Governor was not always bound by theadvice of the Council of Ministers and there were recognised exceptionsEto the said rule where the Governor is required to act in his own discretion.For the said proposition, he relied upon a judgment of this Court in M.P.Special Police Establishment v. State of M.P.[2], wherein it was heldthat on those occasions where on facts the bias of the Council of Ministersbecame apparent and / or the decision of the Council of Ministers isFshown to be irrational and based on non-consideration of relevant factors,the Governor would be right, on the facts of that case, to act in his owndiscretion and grant sanction. He made an attempt to convince this Courtthat the point canvassed by the Appellant pertaining to the reference ofthe recommendations of the State Cabinet to the President of India isbeyond the scope of the writ petition and, therefore, should not beGentertained.

12. The only point that requires to be considered in these Appealsis the correctness of the reference made by the Governor to the Presidentof India on 25.01.2021, without taking a decision on the recommendation

made by the State Cabinet on remission of the sentence of the Appellant.We do not accept the preliminary objection of the learned AdditionalSolicitor General that this point is not within the scope of this appeal.From the facts mentioned above, it is clear that these Appeals are filedagainst orders passed by the High Court refusing to entertain petitionsfiled by the Appellant, one of which was against a judgment of thedesignated TADA Court rejecting the request for effective monitoringof the investigation into the remaining aspects of this case. This Courthad issued notice in Cri. M.P. No. 118421 of 2017 filed by the Appellantseeking suspension of sentence, wherein it was stated that despite theState Government having already proposed premature release, the CentralGovernment had not taken any decision on the fate of the Appellant till2017, as required pursuant to the judgment in Sriharan (supra). Further,during the pendency of these Appeals, the petition preferred by theAppellant for remission was favourably considered by the State Cabineton 09.09.2018 but the Governor did not take any decision on the saidrecommendation. Ultimately, the Governor without taking a decision onthe recommendation made by the State Cabinet, referred the matter tothe President of India. In view of the importance of the issue that arisesfor consideration of this Court, we refuse to entertain the objection ofthe learned Additional Solicitor General and proceed to determine thepoint that is raised by the Appellant.

13. The power to grant pardons, reprieves, respites or remissionsof punishment or to suspend, remit or commute the sentence of anyperson convicted of an offence against any law related to which theexecutive power of the State extends is vested in the Governor underArticle 161 of the Constitution. Article 162 makes it clear that theexecutive power of the State shall extend to matters with respect towhich the Legislature of the State has power to make laws. Article163of the Constitution provides that there shall be a Council of Ministerswith the Chief Minister at the head to aid and advise the Governor in theexercise of his functions, except in so far as he is by or under thisConstitution required to exercise his functions or any of them in hisdiscretion.

14. The limits within which the executive Government can functionunder the Indian Constitution can be ascertained without much difficultyby reference to the form of the executive which our Constitution has setup. Our Constitution, though federal in its structure, is modelled on the A

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ABritish parliamentary system where the executive is deemed to have theprimary responsibility for the formulation of governmental policy and itstransmission into law though the condition precedent to the exercise ofthis responsibility is its retaining the confidence of the legislative branchof the State. The Governor occupies the position of the head of theexecutive in the State but it is virtually the Council of Ministers in eachBState that carries on the executive Government. In the Indian Constitution,therefore, we have the same system of parliamentary executive as inEngland and the Council of Ministers consisting, as it does, of the membersof the legislature is, like the British Cabinet, “a hyphen which joins, abuckle which fastens the legislative part of the State to the executiveCpart”.[3]

15. Under the Cabinet system of Government as embodied in ourConstitution the Governor is the constitutional or formal head of theState and he exercises all his powers and functions conferred on him byor under the Constitution on the aid and advice of his Council of Ministers,Dsave in spheres where the Governor is required by or under theConstitution to exercise his functions in his discretion. Wherever theConstitution requires the satisfaction of the President or the Governorfor the exercise of any power or function by the President or the Governor,as the case may be, as for example in Articles 123, 213, 311(2) provisoE(c), 317, 352(1), 356 and 360, the satisfaction required by the Constitutionis not the personal satisfaction of the President or of the Governor but isthe satisfaction of the President or of the Governor in the constitutionalsense under the Cabinet system of Government. It is the satisfaction ofthe Council of Ministers on whose aid and advice the President or theGovernor generally exercises all his powers and functions.[4]F

16. Even though the Governor may be authorised to exercise somefunctions, under different provisions of the Constitution, the same arerequired to be exercised only on the basis of the aid and advice tenderedto him under Article 163, unless the Governor has been expresslyauthorised, by or under a constitutional provision, to discharge the functionGconcerned, in his own discretion.[5]

3 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225

4 Samsher Singh v. State of Punjab (1974) 2 SCC 831

5 Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh LegislativeHAssembly (2016) 8 SCC 1

17. A Constitution Bench of this Court in Maru Ram v. Union ofIndia[6] authoritatively summed up the position with respect to Article161, as reproduced hereinafter: “…the Governor is the formal headand sole repository of the executive power but is incapable of actingexcept on, and according to, the advice of his Council of Ministers.The upshot is that the State Government, whether the Governor likesit or not, can advice and act under Article 161, the Governor beingbound by that advice. The action of commutation and release canthus be pursuant to a governmental decision and the order mayissue even without the Governor’s approval although, under theRules of Business and as a matter of constitutional courtesy, it isobligatory that the signature of the Governor should authorise thepardon, commutation or release”.

18. By following the dictum in Samsher Singh v. State of Punjab[7],this Court in Maru Ram (supra) further held that in the matter of exerciseof the powers under Articles 72 and 161, the two highest dignitaries inour constitutional scheme act and must act not on their own judgmentbut in accordance with the aid and advice of the ministers. Theconstitutional conclusion is that the Governor is but a shorthand expressionfor the State Government.

19. The law laid down by this Court, as detailed above, is clearand explicit. The advice of the State Cabinet is binding on the Governorin matters relating to commutation / remission of sentences under Article161. No provision under the Constitution has been pointed out to us norany satisfactory response tendered as to the source of the Governor’spower to refer a recommendation made by the State Cabinet to thePresident of India. In the instant case, the Governor ought not to havesent the recommendation made by the State Cabinet to the President ofIndia. Such action is contrary to the constitutional scheme elaboratedabove. It is relevant to point out that the recommendation made by theState Cabinet was on 09.09.2018, which remained pending before theGovernor for almost two and a half years without a decision being taken.It was only when this Court started enquiring about the reason for thedecision being delayed, the Governor forwarded the recommendationmade by the State Government for remission of the Appellant’s sentenceto the President of India.

6 (1981) 1 SCC 161

7 (1974) 2 SCC 831

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A20. We are fully conscious of the immunity of the Governor underthe Constitution with respect to the exercise and performance of thepowers and duties of his office or for any act done or purported to bedone by him in the exercise and performance of such powers and duties.However, as held by this Court in numerous decisions, this Court has thepower of judicial review of orders of the Governor under Article 161,Bwhich can be impugned on certain grounds. Non-exercise of the powerunder Article 161 is not immune from judicial review, as held by thisCourt in Epuru Sudhakar v. Govt. of A.P.[8]. Given petitions under Article161 pertain to the liberty of individuals, inexplicable delay not on accountof the prisoners is inexcusable as it contributes to adverse physicalCconditions and mental distress faced by a prisoner, especially when theState Cabinet has taken a decision to release the prisoner by grantinghim the benefit of remission / commutation of his sentence.

21. The learned Additional Solicitor General, on the basis of thejudgment of this Court in M.P. Special Police Establishment (supra),Dargued that an irrational decision of the Cabinet can be examined by theGovernor in his discretion to come to a different conclusion. Grant ofsanction for prosecution under Section 197, CrPC against two Ministersof the Government of Madhya Pradesh was the subject matter of thesaid case. On the basis of a complaint made to the Lokayukta for illegalrelease of lands, the Lokayukta investigated and submitted a report statingEthat there were sufficient grounds for prosecuting the two Ministersunder the Prevention of Corruption Act, 1988. The Council of Ministerstook a decision no material was available against both the Ministers forgrant of sanction. However, the Governor was of the opinion that aprima facie case for prosecution was made out and granted sanction.FWrit petitions were filed under Article 226 of the Constitution by theaggrieved Ministers on the ground that the Governor could not haveacted in his discretion within the meaning of Article 163 of the Constitution.A single Judge of the High Court of Madhya Pradesh allowed the writpetitions of the Ministers by concluding that granting sanction for prosecuting the Ministers was not a function which could be exercisedGby the Governor ‘in his discretion’ and the Governor could not haveacted contrary to the aid and advice of the Council of Ministers. Thisdecision was upheld by the Division Bench of the High Court, aggrievedby which appeals were filed before this Court. This Court reversed the H8 (2006) 8 SCC 161

judgment of the High Court and held that while the matter of sanctionfor prosecution is on the aid and advice of the Council of Ministers andnot at the discretion of the Governor in normal circumstances, anexception may arise on the grant of sanction to prosecute either a ChiefMinister or a Minister where as a matter of propriety the Governor mayhave to act in his own discretion. It was noted by this Court that arelevant consideration such as the report of the Lokayukta was absentin the mind of the Council of Ministers while refusing to grant sanctionand such refusal to take into consideration a relevant fact or orderspassed on the basis of irrelevant and extraneous factors not germane tothe purpose of arriving at the conclusion would vitiate an administrativeorder. In such cases, this Court was of the opinion that the Governor canact in his own discretion, or else, there would be a complete breakdownof the rule of law.

22. We are afraid that the judgment of this Court in M.P. SpecialPolice Establishment (supra) is not applicable to the facts of the presentcase. No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the StateCabinet having based its recommendation on extraneous considerations.Moreover, in the said case, the Governor had taken a decision whichwas subsequently challenged, unlike the present case, where the Governorhas merely forwarded the recommendation made by the State Cabinetto the President of India.

23. Strong reliance was placed by Mr. Natraj on the judgment ofthis Court in Sriharan (supra) to contend that it is only the President ofIndia who has the power to pardon or grant remission or commutation ofsentence, when a sentence is imposed under any of the provisions of theIPC and that the Governor has no power to grant pardon in exercise ofhis power under Article 161 of the Constitution. One of the points thatwas framed for consideration by the Constitution Bench in Sriharan(supra) pertained to the determination of the “appropriate Government”for exercise of powers under Sections 432 and 433, CrPC. In the opinionof Ibrahim Kalifulla, J. (speaking for himself, Dattu, C.J. and Ghose, J.),the response was given in the following terms:

“Questions 52.3, 52.4 and 52.5:

52.3 Whether Section 432(7) of the Code clearly givesprimacy to the Executive Power of the Union and excludes A

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the Executive Power of the State where the power of the Unionis coextensive?

52.4 Whether the Union or the State has primacy over thesubject-matter enlisted in List III of the Seventh Schedule tothe Constitution of India for exercise of power of remission?

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52.5 Whether there can be two appropriate Governments ina given case under Section 432(7) of the Code?

Answer

180. The status of appropriate Government whether the UnionCGovernment or the State Government will depend upon theorder of sentence passed by the criminal court as has beenstipulated in Section 432(6) and in the event of specificExecutive Power conferred on the Centre under a law madeby Parliament or under the Constitution itself then in the eventof the conviction and sentence covered by the said law ofDParliament or the provisions of the Constitution even if theLegislature of the State is also empowered to make a law onthe same subject and coextensive, the appropriate Governmentwill be the Union Government having regard to theprescription contained in the proviso to Article 73(1)(a) ofEthe Constitution. The principle stated in the decision in G.V.Ramanaiah [G.V. Ramanaiah v. Supt. of Central Jail, (1974)3 SCC 531 : 1974 SCC (Cri) 6 : AIR 1974 SC 31] should beapplied. In other words, cases which fall within the fourcorners of Section 432(7)(a) by virtue of specific ExecutivePower conferred on the Centre, the same will clothe the UnionFGovernment the primacy with the status of appropriateGovernment. Barring cases falling under Section 432(7)(a),in all other cases where the offender is sentenced or thesentence order is passed within the territorial jurisdiction ofthe State concerned, the State Government would be theappropriate Government.”

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24. Lalit, J., in a concurring opinion (speaking for himself andSapre, J.), answered the question as under –

“219. We are, however, concerned in the present case withoffence under Section 302 IPC simpliciter. The respondentconvicts stand acquitted insofar as offences under the TADA

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A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICECBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]

are concerned. We find force in the submissions of Mr RakeshDwivedi, learned Senior Advocate that the offence underSection 302 IPC is directly related to “public order” underSchedule VII List II Entry 1 to the Constitution and is in theexclusive domain of the State Government. In our view theoffence in question is within the exclusive domain of the StateGovernment and it is the Executive Power of the State whichmust extend to such offence. Even if it is accepted for thesake of argument that the offence under Section 302 IPC isreferable to Entry 1 of List III, in accordance with theprinciples as discussed hereinabove, it is the Executive Powerof the State Government alone which must extend, in theabsence of any specific provision in the Constitution or inthe law made by Parliament. Consequently, the StateGovernment is the appropriate Government in respect of theoffence in question in the present matter. It may be relevant tonote that right from K.M. Nanavati v. State of Bombay [K.M.Nanavati v. State of Bombay, AIR 1961 SC 112 : (1961) 1 CriLJ 173 : (1961) 1 SCR 497 at p. 516] in matters concerningoffences under Section 302 IPC it is the Governor underArticle 161 or the State Government as appropriateGovernment under the CrPC who have been exercisingappropriate powers.”

25. Section 432(7), CrPC is reproduced below.

432. Power to suspend or remit sentences.

…

(7) In this section and in section 433, the expression“appropriate Government” means,- (a) in cases where the sentence is for an offence against, orthe order referred to in sub-section (6) is passed under, anylaw relating to a matter to which the executive power of theUnion extends, the Central Government; (b) in other cases, the Government of the State within whichthe offender is sentenced or the said order is passed.

To ascertain the extent of the executive power of the Union, thisCourt looked into and rendered a detailed analysis of Articles 72, 73, 161

A

B

C

DE

F

G

H

Aand 162. The focal point of discussion in the judgment relates to theproviso to Article 73 of the Constitution. Article 73(1) reads as below:

Article 73. Extent of executive power of the Union.- (1) Subjectto the provisions of this Constitution, the executive power ofthe Union shall extend —B(a) to the matters with respect to which Parliament has powerto make laws; and (b) to the exercise of such rights, authority and jurisdictionas are exercisable by the Government of India by virtue ofany treaty or agreement:CProvided that the executive power referred to in subclause(a) shall not, save as expressly provided in this Constitutionor in any law made by Parliament, extend in any State tomatters with respect to which the Legislature of the State hasalso power to make laws.D…

26. After an exhaustive discussion, including reference to theConstituent Assembly Debates on draft Article 60 which corresponds toArticle 73, it was held by this Court that where the State Legislaturewas also empowered to make laws on the same subject, determinationof whether the executive power of the Union Government would extendEto the State Government or not has to be decided by taking into accountthe fact of whether executive power has been expressly conferred onthe Centre, either by the Constitution or under the law made by theParliament. Therefore, to assess whether the executive power of theUnion extended to a subject-matter in List III of the Seventh ScheduleFof the Constitution, it has to be examined whether executive power hadbeen expressly conferred on the Union under the Constitution or the lawmade by the Parliament, failing which the executive power of the Stateremained intact. To our minds, it is clear from the said judgment thatinsofar as offences under Section 302, IPC are concerned, in the absenceof any specific provision under the Constitution or under law made byGthe Parliament expressly conferring executive power on the Union, theexecutive power of the State would extend, irrespective of whether thesubject-matter of Section 302 is considered to be covered by an Entry inList II or an Entry in List III of the Seventh Schedule.

27. Mr. Sankaranarayanan has submitted a list of cases whereinHthis Court, in the specific facts and circumstances of those cases, has directed release of the prisoner convicted under Section 302 simpliciteror along with other offences, taking note of the prolonged period ofincarceration, educational qualifications obtained during the period ofincarceration, conduct in jail as well as the futility of subjecting theprisoners to another round of litigation.

28. The Appellant was 19 years of age at the time of his arrestand has been incarcerated for 32 years, out of which he has spent 16years on the death row and 29 years in solitary confinement. There hasbeen no complaint relating to his conduct in jail. On the two occasionsthat the Appellant had been released on parole, there had been nocomplaint regarding his conduct or breach of any condition of release.Medical records, filed on behalf of the Appellant, show that he is sufferingfrom chronic ailments. Apart from his good behaviour in jail, the Appellanthas also educated himself and successfully completed his +2 exams, anundergraduate degree, a postgraduate degree, a diploma and eightcertification courses. Given that his petition under Article 161 remainedpending for two and a half years following the recommendation of theState Cabinet for remission of his sentence and continues to remainpending for over a year since the reference by the Governor, we do notconsider it appropriate to remand the matter for the Governor’sconsideration. In the absence of any other disqualification and in theexceptional facts and circumstances of this case, in exercise of our powerunder Article 142 of the Constitution, we direct that the Appellant isdeemed to have served the sentence in connection with Crime No. 329of 1991. The Appellant, who is on bail, is set at liberty forthwith.

29. In conclusion, we have summarised our findings below:

(a) The law laid down by a catena of judgments of this Court iswell-settled that the advice of the State Cabinet is bindingon the Governor in the exercise of his powers under Article161 of the Constitution.

(b) Non-exercise of the power under Article 161 or inexplicabledelay in exercise of such power not attributable to theprisoner is subject to judicial review by this Court, especiallywhen the State Cabinet has taken a decision to release theprisoner and made recommendations to the Governor tothis effect.

(c) The reference of the recommendation of the Tamil NaduCabinet by the Governor to the President of India two anda half years after such recommendation had been made is A

BC

D

E

F

G

H

without any constitutional backing and is inimical to thescheme of our Constitution, whereby “the Governor is buta shorthand expression for the State Government” asobserved by this Court[9].

A

(d) The judgment of this Court in M.P. Special PoliceBEstablishment (supra) has no applicability to the facts ofthis case and neither has any attempt been made to makeout a case of apparent bias of the State Cabinet or theState Cabinet having based its decision on irrelevantconsiderations, which formed the fulcrum of the saidjudgment.

C(e)The understanding sought to be attributed to the judgmentof this Court in Sriharan (supra) with respect to the UnionGovernment having the power to remit / commute sentencesimposed under Section 302, IPC is incorrect, as no expressexecutive power has been conferred on the Centre eitherDunder the Constitution or law made by the Parliament inrelation to Section 302. In the absence of such specificconferment, it is the executive power of the State thatextends 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 ofEincarceration, his satisfactory conduct in jail as well as duringparole, chronic ailments from his medical records, hiseducational qualifications acquired during incarceration andthe pendency of his petition under Article 161 for two and ahalf years after the recommendation of the State Cabinet,we do not consider it fit to remand the matter for theFGovernor’s consideration. In exercise of our power underArticle 142 of the Constitution, we direct that the Appellantis deemed to have served the sentence in connection withCrime No. 329 of 1991. The Appellant, who is already onbail, is set at liberty forthwith. His bail bonds are cancelled.G30. The Appeals are disposed of accordingly.

Nidhi Jain

(Assisted by : Tamana, LCRA)

Appeals disposed of.

H9 Maru Ram v. Union of India (supra)