23 Sep
WHY IN THE NEWS?
Recently, the Supreme Court of India ordered the release of A G Perarivalan by invoking Article 142 of the Constitution of India. The court protected federal philosophy by reiterating the State’s power to advise the Governor in case of pleas of pardon under Article 161.
HISTORICAL BACKGROUND OF THE CASE
Perarivalan is one of the 7 convicts in the former Prime Minister Rajiv Gandhi assassination case. He has been in prison for almost 30 years and his link is the purchase of a battery used in the suicide bomb.
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ROLE OF PRESIDENT
- On conviction by the Supreme Court in 1999, convicts applied mercy petition before President.
- Article 72 empowers the President the power to grant pardons, reprieves, respites, remissions of punishment or to suspend, remit or, commute the sentence of any person convicted of any offense.
- The President’s inordinate delay led Supreme Court to Commute the death sentence to imprisonment in 2014.
ROLE OF GOVERNOR
- Supreme Court in 2018 ordered appropriate authority to take decisions on mercy petitions citing completion of punishment under central laws (CrPC).
- Tamil Nadu Government in 2018 advised Governor to pardon Perarivalan under Article 161 (Governor’s power of clemency) of the Constitution.
- Article 161 provides that the Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense against any law relating to a matter to which the executive power of the State extends.
VIOLATION OF FEDERAL PRINCIPLE
- Under the Constitution, the Governor is bound by the aid and advice of the State government in the exercise of pardoning powers.
- The Governor forwarded the clemency petition to the President, where he has no power to do the same according to the Constitution.
- It is an abdication of constitutional duty and is unconstitutional to ignore the advice of the State government, which the Governor is constitutionally bound to follow.
- This overarching action of the Governor could be attributed as a violation of federal polity downgrading the powers and functions of state machinery.
CONSTRUCTIVE APPLICATION OF ARTICLE 142
- Article 142 provides discretionary power to the Supreme Courtas it states that the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Supreme court invoked Article 142 to deliver justice to Perarivalan on Governor’s reluctance.
CONFLICT IN THIS CASE- EXECUTIVE JURISDICTION OF UNION AND STATE
- Under 432,433,435 of CrPC, when a case is already probed by a central agency, the State Government needs the concurrence of the Central government for the remission.
- Under Supreme court judgment in 2018,Pardoning powers overrides Section 433A: The State government can invoke Article 161 to release Convicts on completion of imprisonment under central laws.
- Contradictions between Constitutional provisions by the state government and legislative provisions by the central government ended up with Supreme Court Invoking Article 142 to uphold constitutional provisions.
ETHICAL ISSUES
- Procedure established by Law Vs National security: Compromising National security at the cost of the Rule of Law ends up giving the wrong message to the international arena.
- Misuse of Constitutional Powers Vs Individual Freedom: Misuse of discretionary powers by executive authorities at the cost of individual liberty violates basic human rights.
- Loss of trust and public confidence in the criminal justice system.
- Inordinate delay in delivering justice occupies the productive phase of human capital.
- Against Constitutional Morality and its principles.
CONCLUSION
In this case, the Court stated that “a barbaric crime does not have to be visited with a barbaric penalty”. So Indian Justice System should stand for Reformation rather than Retribution through speedy justice delivery and also by the codification of discretionary powers of the Constitution.
Question:
“No person shall be deprived of his personal liberty except according to a procedure established by law, but not because of delay in procedural law”. Examine the statement.
(250 Words, 15 Marks)
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