# A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/ MMDA, CHENNAI, TAMIL NADU AND ANR

- **Citation:** [2022] 7 S.C.R. 1048
- **Court:** Supreme Court of India
- **Decided:** 2022-05-18
- **Case number:** Criminal Appeal Nos. 833-834 of 2022
- **Bench:** L. Nageswara Rao, B. R. Gavai, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-g-perarivalan-v-state-through-superintendent-of-police-cbi-sit-mmda-chennai-36177
- **Pages:** 19

## Headnote

Constitution of India: Art. 161 - Power of Governor to grant
pardons, etc, and to suspend, remit or commute sentences in certain
cases - Appellant, one of the accused in assassination of the former
Prime Minister of India-Shri Rajeev Gandhi - Convicted and
sentenced to death - Death sentence commuted to life imprisonment
- As regards, remission of the sentence of the appellant, reference
made by the Governor to the President of 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 - Correctness
of - Held: The advice of the State Cabinet is binding on the Governor
in matters relating to commutation / remission of sentences u/Art.161
- Non-exercise of the power u/Art. 161 or inexplicable delay in
exercise of such power not attributable to the prisoner is subject to
judicial review, especially when the State Cabinet has taken a
decision to release the prisoner and made recommendations to the
Governor to this effect - No provision under the Constitution pointed
out nor any source of the Governor's power to refer a
recommendation made by the State Cabinet to the President of India
showed - In the instant case, the Governor ought not to have sent
the recommendation made by the State Cabinet to the President of
India - Such action is contrary to the constitutional scheme -
Recommendation made by the State Cabinet remained pending
before the Governor for almost two and a half years without a
decision being taken - Only when this Court started enquiring about
the reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission of
the appellant's sentence to the President of India - Furthermore,
having regard to the appellant's incarceration for 32 years, no
complaint relating to his conduct in jail, his chronic ailments from
his medical records, his educational qualifications acquired during
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incarceration and the pendency of his petition u/Art. 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 power u/Art. 142, the appellant is deemed to have served
the sentence - Appellant is set at liberty forthwith - Penal Code,
1860 - Arms Act, 1951 - Explosive Substances Act, 1908 - Passport
Act,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 on
the Governor in matters relating to commutation / remission of
sentences under Article 161. No provision under the Constitution
has been pointed out nor any satisfactory response tendered as
to the source of the Governor's power to refer a recommendation
made by the State Cabinet to the President of India. In the instant
case, the Governor ought not to have sent the recommendation
made by the State Cabinet to the President of India. Such action
is contrary to the constitutional scheme elaborated above. It is
relevant to point out that the recommendation made by the State
Cabinet was on 09.09.2018, which remained pending before the
Governor for almost two and a half years without a decision being
taken. It was only when this Court started enquiring about the
reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission
of the Appellant's sentence to the President of India. [Para
19][1059-E-G]
1.2 This Court is conscious of the immunity of the Governor
under the Constitution with respect to the exercise and
performance of the powers and duties of his office or for any act
done or purported to be done by him in the exercise and
performance of such powers and duties. This Court has the power
of judicial review of orders of the Governor under Article 161,
which can be impugned on certain grounds. Non-exercise of the
po

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SUPREME COURT REPORTS
[2022] 7 S.C.R.
 [2022] 7 S.C.R. 1048
1048
A.G. PERARIVALAN
v.
STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/
MMDA, CHENNAI, TAMIL NADU AND ANR.
(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 grant
pardons, etc, and to suspend, remit or commute sentences in certain
cases - Appellant, one of the accused in assassination of the former
Prime Minister of India-Shri Rajeev Gandhi - Convicted and
sentenced to death - Death sentence commuted to life imprisonment
- As regards, remission of the sentence of the appellant, reference
made by the Governor to the President of 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 - Correctness
of - Held: The advice of the State Cabinet is binding on the Governor
in matters relating to commutation / remission of sentences u/Art.161
- Non-exercise of the power u/Art. 161 or inexplicable delay in
exercise of such power not attributable to the prisoner is subject to
judicial review, especially when the State Cabinet has taken a
decision to release the prisoner and made recommendations to the
Governor to this effect - No provision under the Constitution pointed
out nor any source of the Governor's power to refer a
recommendation made by the State Cabinet to the President of India
showed - In the instant case, the Governor ought not to have sent
the recommendation made by the State Cabinet to the President of
India - Such action is contrary to the constitutional scheme -
Recommendation made by the State Cabinet remained pending
before the Governor for almost two and a half years without a
decision being taken - Only when this Court started enquiring about
the reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission of
the appellant's sentence to the President of India - Furthermore,
having regard to the appellant's incarceration for 32 years, no
complaint relating to his conduct in jail, his chronic ailments from
his medical records, his educational qualifications acquired during
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incarceration and the pendency of his petition u/Art. 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 power u/Art. 142, the appellant is deemed to have served
the sentence - Appellant is set at liberty forthwith - Penal Code,
1860 - Arms Act, 1951 - Explosive Substances Act, 1908 - Passport
Act,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 on
the Governor in matters relating to commutation / remission of
sentences under Article 161. No provision under the Constitution
has been pointed out nor any satisfactory response tendered as
to the source of the Governor's power to refer a recommendation
made by the State Cabinet to the President of India. In the instant
case, the Governor ought not to have sent the recommendation
made by the State Cabinet to the President of India. Such action
is contrary to the constitutional scheme elaborated above. It is
relevant to point out that the recommendation made by the State
Cabinet was on 09.09.2018, which remained pending before the
Governor for almost two and a half years without a decision being
taken. It was only when this Court started enquiring about the
reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission
of the Appellant's sentence to the President of India. [Para
19][1059-E-G]
1.2 This Court is conscious of the immunity of the Governor
under the Constitution with respect to the exercise and
performance of the powers and duties of his office or for any act
done or purported to be done by him in the exercise and
performance of such powers and duties. This Court has the power
of judicial review of orders of the Governor under Article 161,
which can be impugned on certain grounds. Non-exercise of the
power under Article 161 is not immune from judicial review. Given
petitions under Article 161 pertain to the liberty of individuals,
inexplicable delay not on account of the prisoners is inexcusable
as it contributes to adverse physical conditions and mental
distress faced by a prisoner, especially when the State Cabinet
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
has taken a decision to release the prisoner by granting him the
benefit of remission / commutation of his sentence. [Para
20][1060-A-C]
1.3 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, 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 the power under Article
142 of the Constitution, 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. [Para 28][1065B-E]
1.4. The advice of the State Cabinet is binding on the
Governor in the exercise of his powers under Article 161 of the
Constitution. 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 this Court, especially
when the State Cabinet has taken a decision to release the
prisoner and made recommendations to the Governor to this
effect. 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
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expression for the State Government". 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.
The understanding sought to be attributed to the judgment of
this Court in Sriharan's case 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. 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
considered fit to remand the matter for the Governor's
consideration. In exercise of power under Article 142 of the
Constitution, 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. [Para 29][1065F-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. State
of Punjab (1955) 2 SCR 225; Samsher Singh v. State
of Punjab (1974) 2 SCC 831 : [1975] (1) SCR 814;
Nabam Rebia and Bamang Felix v. Deputy Speaker,
Arunachal Pradesh Legislative Assembly (2016) 8 SCC
1 : [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; Epuru
Sudhakar v. Govt. of A.P. (2006) 8 SCC 161 : [2006]
(7) Suppl. SCR 81 - referred to.
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
Case Law Reference
[2015] (14) SCR 613
referred to
Para 3
[2004] (5) Suppl. SCR 1020 distinguished
Para 22
[1955] 2 SCR 225
referred to
Para 14
[1975] (1) SCR 814
referred to
Para 15
[2016] (6) SCR 1
referred to
Para 16
(1981) 1 SCC 161
referred to
Para 17
[1975] (1) SCR 814
referred to
Para 18
[2006] (7) Suppl. SCR 81
referred to
Para 20
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 833-834 of 2022.
From the judgment and order dated 06.03.2015 of the High Court
of Judicature at Madras in Crl. O.P.S.R. No. 4084/2015 and Crl. O.P.
No. 5073/2015.
With
Criminal Appeal No. 835 of 2022
Gopal Sankaranarayanan, Sr. Adv., Prabu Ramasubramanian, K.
Paari 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, Amit
Anand 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., Eklavya
Dwivedi, Ms. Mary Mitzy, Ms. Devyani Gupta, Ms. Tanvi Anand, Ms.
Nupur Sharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. Jessica
Bhardwaj, 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 by
L. NAGESWARA RAO, J.
Leave granted.
1. Appellant is accused No.18 in Crime No. 329 of 1991 registered
at Sriperumbudur Police Station for assassination of Shri Rajeev Gandhi,
former Prime Minister of India, on 21.05.1991. The Appellant was
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convicted for offences under the Indian Penal Code, 1860 (for short,
'IPC'), the Arms Act, 1951, the Explosive Substances Act, 1908, the
Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless
Telegraphy Act, 1933 and the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short, 'TADA'). He was sentenced to death
by the designated TADA Court. This Court, by a judgment dated
11.05.1999, 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 order
dated 08.10.1999. The Appellant, along with three others, filed mercy
petitions before the Governor of Tamil Nadu under Article 161 of the
Constitution of India, which were rejected on 27.10.1999. The mercy
petition of the Appellant was reconsidered by the Governor, pursuant to
an order passed by the High Court of Tamil Nadu, and was rejected
again on 25.04.2000. The Appellant filed a mercy petition before the
President of India under Article 72 of the Constitution, which was also
rejected on 12.08.2011. Aggrieved thereby, a writ petition was filed in
the High Court of Madras. The said writ petition filed by the Appellant
before the High Court of Madras was transferred to this Court by an
order dated 01.05.2012. Thereafter, the death sentence of the Appellant
was 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, the
State of Tamil Nadu proposed remission of the sentence of life
imprisonment imposed on the Appellant to the Government of India,
requesting its views within three days. The said proposal was made in
view of Section 435 of the Criminal Procedure Code, 1973 (for short,
'CrPC'), according to which the Central Government was required to
be consulted, as the case had been investigated by the Central Bureau
of Investigation (CBI). The Union of India immediately filed criminal
miscellaneous petitions in the cases disposed of by this Court on
18.02.2014, commuting the sentence imposed on the Appellant to life
imprisonment. In these petitions, the Central Government sought a
direction to the State of Tamil Nadu not to release the Appellant. An
order of status quo was passed by this Court in the said criminal
miscellaneous petitions on 20.02.2014. The Review Petitions filed by
the Union of India against the judgment dated 18.02.2014 commuting
the sentence of the Appellant, were dismissed.
3. On 24.02.2014, the Union of India filed a writ petition for
quashing the communication from the State of Tamil Nadu dated
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
19.02.2014 and its decision to consider commutation / remission of the
sentence imposed on the Appellant and some others. The writ petition
was referred to a Constitution Bench of this Court by order dated
25.04.2014, after formulating seven questions for consideration. By a
judgment dated 02.12.2015, this Court answered the questions that were
framed for consideration in Union of India v. Sriharan1.
4. On 30.12.2015, the Appellant filed a petition under Article 161
of the Constitution for remission of his sentence. The writ petition filed
by the Union of India for quashing the proposal of the State Government
to grant remission to the Appellant was disposed of by this Court on
06.09.2018, by taking note of the fact that a petition had been filed by
the Appellant under Article 161 of the Constitution and giving liberty to
the authority concerned to dispose of the said petition as deemed fit. A
resolution was passed by the Tamil Nadu Cabinet on 09.09.2018,
recommending the release of the Appellant, which was sent to the
Governor.
5. In the meanwhile, the Appellant filed a criminal miscellaneous
petition before the designated TADA Court, Chennai praying for effective
monitoring of the pending investigation of the assassination. The said
petition was dismissed by the TADA Court on 10.12.2013, against which
the Appellant approached the High Court under Section 482, CrPC, by
filing a criminal original petition. Another criminal original petition was
filed seeking direction to the CBI to complete the pending investigation
expeditiously and to file a status report before the High Court once every
two months. The High Court dismissed both the petitions by separate
orders on 06.03.2015, being of the opinion that the Appellant should have
approached the Supreme Court. These Appeals have been filed against
the said orders passed by the High Court on 06.03.2015. Notice was
issued by this Court in Crl. M.P. No. 118421 of 2017 filed by the Appellant
seeking suspension of sentence.
6. During the pendency of these Appeals, this Court was informed
that no decision has been taken by the Governor on the resolution passed
by the Tamil Nadu Cabinet on 09.09.2018, recommending release of the
Appellant. On 11.02.2020, this Court directed the Additional Advocate
General for the State of Tamil Nadu to get instructions on the status of
the recommendation of the Council of Ministers to the Governor. During
1 (2016) 7 SCC 1
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the course of hearing of applications filed for parole, the High Court was
informed that the Governor has not taken a decision on the
recommendation made by the State Cabinet pertaining to the remission
of the Appellant's sentence, as the final report of the Multi-Disciplinary
Monitoring Agency (for short, 'MDMA') was awaited. The CBI filed
an affidavit in these Appeals on 20.11.2020 informing this Court that no
request had been made by the Governor seeking report of the MDMA
and that the petition filed under Article 161 can be decided on its own
merits.
7. The learned Solicitor General of India appeared on 21.01.2021
to inform this Court that a decision would be taken by the Governor on
the petition filed under Article 161 without any further delay. Thereafter,
on 04.02.2021, an affidavit was filed by the Deputy Secretary, Ministry
of Home Affairs, stating that the Governor had, by order dated
25.01.2021, determined the President of India to be the appropriate
authority to decide the petition filed by the Appellant under Article 161
and had forwarded the same, along with the recommendation made by
the Tamil Nadu cabinet, to the President of India.
8. By an order dated 09.03.2022, this Court released the Appellant
on bail, taking into account the fact that the Appellant had spent more
than 31 years in jail, that his conduct in jail was good, he had acquired
several 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 by
the State Cabinet to grant remission to the Appellant should have been
decided by the Governor. The Governor does not have power to refer
the recommendation of the State Cabinet to the President of India. He
contended that the recommendation made by the State Cabinet is binding
on the Governor and he cannot exercise independent discretion. At the
most, the Governor could have requested the State Cabinet to reconsider
its decision but he lacked the jurisdiction or power to refer the
recommendation made by the State Cabinet to the President of India, as
under Article 161 the Governor exercised power on the aid and advice
of the Council of Ministers. It was further submitted that if the argument
of the competent authority being the President of India is accepted, then
every pardon / suspension granted by the Governor till date under Article
161 would be unconstitutional.
10. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for
the State of Tamil Nadu, supported the stand of the Appellant by arguing
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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that the scope of Articles 161 to 163 has been explained by more than
one Constitution Bench of this Court, according to which, unless expressly
provided by the Constitution, the Governor is bound by the decision of
the Cabinet of Ministers. If a decision made by the Governor on the
advice of the Council of Ministers is found to be beyond the jurisdiction
of the State Government, it can always be challenged before constitutional
courts. However, the Governor is not constitutionally empowered to sit
in judgment of the recommendation of the Council of Ministers. He further
urged that there is no provision in the Constitution which enables the
Governor to refer the recommendation of the State Cabinet for the
decision of the President of India. Such actions of the Governor would
be in violation of the federal structure of this country, which is a basic
feature 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
from certain passages of the judgment of this Court in Sriharan (supra)
and argued that the Governor rightly referred the recommendation made
by the State Cabinet, as it is only the President of India who can take a
decision on the remission / commutation of the sentence of the Appellant.
He further contended that the Governor was not always bound by the
advice of the Council of Ministers and there were recognised exceptions
to 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 held
that on those occasions where on facts the bias of the Council of Ministers
became apparent and / or the decision of the Council of Ministers is
shown 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 own
discretion and grant sanction. He made an attempt to convince this Court
that the point canvassed by the Appellant pertaining to the reference of
the recommendations of the State Cabinet to the President of India is
beyond the scope of the writ petition and, therefore, should not be
entertained.
12. The only point that requires to be considered in these Appeals
is the correctness of the reference made by the Governor to the President
of India on 25.01.2021, without taking a decision on the recommendation
2 (2004) 8 SCC 788
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made by the State Cabinet on remission of the sentence of the Appellant.
We do not accept the preliminary objection of the learned Additional
Solicitor General that this point is not within the scope of this appeal.
From the facts mentioned above, it is clear that these Appeals are filed
against orders passed by the High Court refusing to entertain petitions
filed by the Appellant, one of which was against a judgment of the
designated TADA Court rejecting the request for effective monitoring
of the investigation into the remaining aspects of this case. This Court
had issued notice in Cri. M.P. No. 118421 of 2017 filed by the Appellant
seeking suspension of sentence, wherein it was stated that despite the
State Government having already proposed premature release, the Central
Government had not taken any decision on the fate of the Appellant till
2017, as required pursuant to the judgment in Sriharan (supra). Further,
during the pendency of these Appeals, the petition preferred by the
Appellant for remission was favourably considered by the State Cabinet
on 09.09.2018 but the Governor did not take any decision on the said
recommendation. Ultimately, the Governor without taking a decision on
the recommendation made by the State Cabinet, referred the matter to
the President of India. In view of the importance of the issue that arises
for consideration of this Court, we refuse to entertain the objection of
the learned Additional Solicitor General and proceed to determine the
point that is raised by the Appellant.
13. The power to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the sentence of any
person convicted of an offence against any law related to which the
executive power of the State extends is vested in the Governor under
Article 161 of the Constitution. Article 162 makes it clear that the
executive power of the State shall extend to matters with respect to
which the Legislature of the State has power to make laws. Article163
of the Constitution provides that there shall be a Council of Ministers
with the Chief Minister at the head to aid and advise the Governor in the
exercise of his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his
discretion.
14. The limits within which the executive Government can function
under the Indian Constitution can be ascertained without much difficulty
by reference to the form of the executive which our Constitution has set
up. Our Constitution, though federal in its structure, is modelled on the
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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[2022] 7 S.C.R.
British parliamentary system where the executive is deemed to have the
primary responsibility for the formulation of governmental policy and its
transmission into law though the condition precedent to the exercise of
this responsibility is its retaining the confidence of the legislative branch
of the State. The Governor occupies the position of the head of the
executive in the State but it is virtually the Council of Ministers in each
State that carries on the executive Government. In the Indian Constitution,
therefore, we have the same system of parliamentary executive as in
England and the Council of Ministers consisting, as it does, of the members
of the legislature is, like the British Cabinet, "a hyphen which joins, a
buckle which fastens the legislative part of the State to the executive
part".3
15. Under the Cabinet system of Government as embodied in our
Constitution the Governor is the constitutional or formal head of the
State and he exercises all his powers and functions conferred on him by
or under the Constitution on the aid and advice of his Council of Ministers,
save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. Wherever the
Constitution requires the satisfaction of the President or the Governor
for 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) proviso
(c), 317, 352(1), 356 and 360, the satisfaction required by the Constitution
is not the personal satisfaction of the President or of the Governor but is
the satisfaction of the President or of the Governor in the constitutional
sense under the Cabinet system of Government. It is the satisfaction of
the Council of Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions.4
16. Even though the Governor may be authorised to exercise some
functions, under different provisions of the Constitution, the same are
required to be exercised only on the basis of the aid and advice tendered
to him under Article 163, unless the Governor has been expressly
authorised, by or under a constitutional provision, to discharge the function
concerned, 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 Legislative
Assembly (2016) 8 SCC 1
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17. A Constitution Bench of this Court in Maru Ram v. Union of
India6 authoritatively summed up the position with respect to Article
161, as reproduced hereinafter: "...the Governor is the formal head
and sole repository of the executive power but is incapable of acting
except on, and according to, the advice of his Council of Ministers.
The upshot is that the State Government, whether the Governor likes
it or not, can advice and act under Article 161, the Governor being
bound by that advice. The action of commutation and release can
thus be pursuant to a governmental decision and the order may
issue even without the Governor's approval although, under the
Rules of Business and as a matter of constitutional courtesy, it is
obligatory that the signature of the Governor should authorise the
pardon, commutation or release".
18. By following the dictum in Samsher Singh v. State of Punjab7,
this Court in Maru Ram (supra) further held that in the matter of exercise
of the powers under Articles 72 and 161, the two highest dignitaries in
our constitutional scheme act and must act not on their own judgment
but in accordance with the aid and advice of the ministers. The
constitutional conclusion is that the Governor is but a shorthand expression
for the State Government.
19. The law laid down by this Court, as detailed above, is clear
and explicit. The advice of the State Cabinet is binding on the Governor
in matters relating to commutation / remission of sentences under Article
161. No provision under the Constitution has been pointed out to us nor
any satisfactory response tendered as to the source of the Governor's
power to refer a recommendation made by the State Cabinet to the
President of India. In the instant case, the Governor ought not to have
sent the recommendation made by the State Cabinet to the President of
India. Such action is contrary to the constitutional scheme elaborated
above. It is relevant to point out that the recommendation made by the
State Cabinet was on 09.09.2018, which remained pending before the
Governor for almost two and a half years without a decision being taken.
It was only when this Court started enquiring about the reason for the
decision being delayed, the Governor forwarded the recommendation
made by the State Government for remission of the Appellant's sentence
to the President of India.
6 (1981) 1 SCC 161
7 (1974) 2 SCC 831
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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20. We are fully conscious of the immunity of the Governor under
the Constitution with respect to the exercise and performance of the
powers and duties of his office or for any act done or purported to be
done by him in the exercise and performance of such powers and duties.
However, as held by this Court in numerous decisions, this Court has the
power of judicial review of orders of the Governor under Article 161,
which can be impugned on certain grounds. Non-exercise of the power
under Article 161 is not immune from judicial review, as held by this
Court in Epuru Sudhakar v. Govt. of A.P.8. Given petitions under Article
161 pertain to the liberty of individuals, inexplicable delay not on account
of the prisoners is inexcusable as it contributes to adverse physical
conditions and mental distress faced by a prisoner, especially when the
State Cabinet has taken a decision to release the prisoner by granting
him the benefit of remission / commutation of his sentence.
21. The learned Additional Solicitor General, on the basis of the
judgment of this Court in M.P. Special Police Establishment (supra),
argued that an irrational decision of the Cabinet can be examined by the
Governor in his discretion to come to a different conclusion. Grant of
sanction for prosecution under Section 197, CrPC against two Ministers
of the Government of Madhya Pradesh was the subject matter of the
said case. On the basis of a complaint made to the Lokayukta for illegal
release of lands, the Lokayukta investigated and submitted a report stating
that there were sufficient grounds for prosecuting the two Ministers
under the Prevention of Corruption Act, 1988. The Council of Ministers
took a decision no material was available against both the Ministers for
grant of sanction. However, the Governor was of the opinion that a
prima facie case for prosecution was made out and granted sanction.
Writ petitions were filed under Article 226 of the Constitution by the
aggrieved Ministers on the ground that the Governor could not have
acted in his discretion within the meaning of Article 163 of the Constitution.
A single Judge of the High Court of Madhya Pradesh allowed the writ
petitions of the Ministers by concluding that granting sanction for
prosecuting the Ministers was not a function which could be exercised
by the Governor 'in his discretion' and the Governor could not have
acted contrary to the aid and advice of the Council of Ministers. This
decision was upheld by the Division Bench of the High Court, aggrieved
by which appeals were filed before this Court. This Court reversed the
8 (2006) 8 SCC 161
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judgment of the High Court and held that while the matter of sanction
for prosecution is on the aid and advice of the Council of Ministers and
not at the discretion of the Governor in normal circumstances, an
exception may arise on the grant of sanction to prosecute either a Chief
Minister or a Minister where as a matter of propriety the Governor may
have to act in his own discretion. It was noted by this Court that a
relevant consideration such as the report of the Lokayukta was absent
in the mind of the Council of Ministers while refusing to grant sanction
and such refusal to take into consideration a relevant fact or orders
passed on the basis of irrelevant and extraneous factors not germane to
the purpose of arriving at the conclusion would vitiate an administrative
order. In such cases, this Court was of the opinion that the Governor can
act in his own discretion, or else, there would be a complete breakdown
of the rule of law.
22. We are afraid that the judgment of this Court in M.P. Special
Police Establishment (supra) is not applicable to the facts of the present
case. No arguments have been put forth to make out a case of nonconsideration of relevant factors by the State Cabinet or of the State
Cabinet having based its recommendation on extraneous considerations.
Moreover, in the said case, the Governor had taken a decision which
was subsequently challenged, unlike the present case, where the Governor
has merely forwarded the recommendation made by the State Cabinet
to the President of India.
23. Strong reliance was placed by Mr. Natraj on the judgment of
this Court in Sriharan (supra) to contend that it is only the President of
India who has the power to pardon or grant remission or commutation of
sentence, when a sentence is imposed under any of the provisions of the
IPC and that the Governor has no power to grant pardon in exercise of
his power under Article 161 of the Constitution. One of the points that
was 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 opinion
of 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 gives
primacy to the Executive Power of the Union and excludes
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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the Executive Power of the State where the power of the Union
is coextensive?
52.4 Whether the Union or the State has primacy over the
subject-matter enlisted in List III of the Seventh Schedule to
the Constitution of India for exercise of power of remission?
52.5 Whether there can be two appropriate Governments in
a given case under Section 432(7) of the Code?
Answer
180. The status of appropriate Government whether the Union
Government or the State Government will depend upon the
order of sentence passed by the criminal court as has been
stipulated in Section 432(6) and in the event of specific
Executive Power conferred on the Centre under a law made
by Parliament or under the Constitution itself then in the event
of the conviction and sentence covered by the said law of
Parliament or the provisions of the Constitution even if the
Legislature of the State is also empowered to make a law on
the same subject and coextensive, the appropriate Government
will be the Union Government having regard to the
prescription contained in the proviso to Article 73(1)(a) of
the 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 be
applied. In other words, cases which fall within the four
corners of Section 432(7)(a) by virtue of specific Executive
Power conferred on the Centre, the same will clothe the Union
Government the primacy with the status of appropriate
Government. Barring cases falling under Section 432(7)(a),
in all other cases where the offender is sentenced or the
sentence order is passed within the territorial jurisdiction of
the State concerned, the State Government would be the
appropriate Government."
24. Lalit, J., in a concurring opinion (speaking for himself and
Sapre, J.), answered the question as under -
"219. We are, however, concerned in the present case with
offence under Section 302 IPC simpliciter. The respondent
convicts stand acquitted insofar as offences under the TADA
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are concerned. We find force in the submissions of Mr Rakesh
Dwivedi, learned Senior Advocate that the offence under
Section 302 IPC is directly related to "public order" under
Schedule VII List II Entry 1 to the Constitution and is in the
exclusive domain of the State Government. In our view the
offence in question is within the exclusive domain of the State
Government and it is the Executive Power of the State which
must extend to such offence. Even if it is accepted for the
sake of argument that the offence under Section 302 IPC is
referable to Entry 1 of List III, in accordance with the
principles as discussed hereinabove, it is the Executive Power
of the State Government alone which must extend, in the
absence of any specific provision in the Constitution or in
the law made by Parliament. Consequently, the State
Government is the appropriate Government in respect of the
offence in question in the present matter. It may be relevant to
note that right from K.M. Nanavati v. State of Bombay [K.M.
Nanavati v. State of Bombay, AIR 1961 SC 112 : (1961) 1 Cri
LJ 173 : (1961) 1 SCR 497 at p. 516] in matters concerning
offences under Section 302 IPC it is the Governor under
Article 161 or the State Government as appropriate
Government under the CrPC who have been exercising
appropriate 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, or
the order referred to in sub-section (6) is passed under, any
law relating to a matter to which the executive power of the
Union extends, the Central Government;
(b) in other cases, the Government of the State within which
the offender is sentenced or the said order is passed.
To ascertain the extent of the executive power of the Union, this
Court looked into and rendered a detailed analysis of Articles 72, 73, 161
A.G. PERARIVALAN v. STATE, THROUGH SUPERINTENDENT OF POLICE
CBI/SIT/MMDA, CHENNAI, TAMIL NADU [L. NAGESWARA RAO, J.]
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and 162. The focal point of discussion in the judgment relates to the
proviso to Article 73 of the Constitution. Article 73(1) reads as below:
Article 73. Extent of executive power of the Union.- (1) Subject
to the provisions of this Constitution, the executive power of
the Union shall extend -
(a) to the matters with respect to which Parliament has power
to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
any treaty or agreement:
Provided that the executive power referred to in subclause
(a) shall not, save as expressly provided in this Constitution
or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State has
also power to make laws.
...
26.