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The Supreme Court while ordering release of AG Perarivalan, a convict in the case pertaining to assassination of former Prime Minister Rajiv Gandhi, has held that 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", further remarked the Top Court.

Accordingly, the bench has held that 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 being contrary to the constitutional scheme.

In the appeal filed before Court, the only point that was to be considered was the correctness of the reference made by the Governor to the President of India on January 25th, 2021, without taking a decision on the recommendation made by the State Cabinet on remission of Perarivalan's sentence.

Court noted that though 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.

"...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....", further remarked a bench of Justices L Nageshwar Rao, BR Gavai and AS Bopanna.

In this regard, the Court said that given petitions under Article 161 pertain to 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.

On the aspect of whether the executive power of the Union Government would extend to the State Government or not, the bench said,

"... insofar as offences under Section 302, IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the State would extend, irrespective of whether the subject-matter of Section 302 is considered to be covered by an Entry in List II or an Entry in List III of the Seventh Schedule."

Thus, noting that Perarivalan's petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet and continues to remain pending for over a year since the reference by the Governor, Court said that it did not consider it appropriate to remand the matter for the Governor’s consideration.

"In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The Appellant, who is on bail, is set at liberty forthwith...", ordered the Top Court.

Case Title: A.G. Perarivalan vs. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr.