Dr. K. Veeramani
Rajiv Gandhi’s heinous murder certainly cannot be justified
We have been firmly feeling from the beginning that former prime minister Rajiv Gandhi’s heinous murder was an inhuman act which deserves to be condemned and a crime which can never be justified. But real culprits were to be punished. The officials related to TADA Act had then, by planning well, trapped innocent people in this case and got them death sentence by hanging. Later it was reduced to life sentence. Today (18.05.2022) the same Supreme Court has released Perarivalan, exercising its judicial power under Article 142 of the Constitution. It has pronounced a verdict of historical importance which is a sign of protecting human rights.
We wholeheartedly commend the three – judge Bench, Hon’ble L. Nageswararao, B.R. Gavai, and A.S. Bopanna for their judgment with absolute clarity and conformation to the law. We join all others in the world in greeting and appreciating them.
The Statements of the Supreme Court judge and TADA Superintendent S.P. Thiagarajan was then dealing with the TADA case. We regret, he is no more. After his retirement, he had confessed that he had tampered with Perarivalan’s confession and fabricated it. The affidavit recorded was not of Perarivalan but as per the direction of the authority. Unable to bear with his qualm, he had admitted so as per print media reports.
Similarly, the former judge of Supreme Court Justice K.T. Thomas had also admitted later that the verdict was pronounced by the Bench without conducting proper enquiry. It is noteworthy that he had erred in his judgment.
The guilty may be acquitted, says Criminal Law – but not even one innocent to be punished
The recent judgment of the Supreme Court vouches for it. The verdict conserves human rights and also highlights clearly relevant provisions in our Constitution. It also depicts how the State Governor had not acted properly, which is not only unconstitutional but also anti-constitutional. The verdict concerned serves as a beacon light exposing glaring loopholes which are to be plugged.
Unconstitutional and Anti-Constitutional
This historic verdict proves beyond doubt that the Governor has been unconstitutional and anti-constitutional. The resolution of the cabinet of Tamil Nadu was for the release of not only Perarivalan but also the release of other six convicts in imprisonment. It has to be construed as the redeeming of the human rights that had been curbed. This would be correct interpretation of the Constitution. This is not only unconstitutional but also anti-constitutional. This verdict makes it clear that the President or the Governor cannot decide on their own in their individualistic way and act against the stipulations of the Constitution. The negligence of Governor in Tamil Nadu has obviously been exposed by this remarkable verdict.
Multiple errors to rectify one error?
The verdict covering 29 pages, pronounced by the Supreme Court Bench had rejected outright the arguments of the Union government which tried to manipulate the provisions in the Constitution. The judges posed many questions at the senior advocates who argued on behalf of the Union government. Those questions of the three Supreme Court judges were such that anyone can clearly understand the backdrop of the case, the terms stated in our law and the lapses on the part of those who ignored our Constitution. To rectify one error multiple errors are committed by some. This verdict shows how in the same manner, strange explanations were offered by the advocates who represented the Union government.
They had tried to deflect and divert the crux of the case, but in vain. Convincing replies were not provided for the inordinate delay in implementing the decision of the State Cabinet. Evasive answers and unconvincing explanations were thrown overboard by the eminent judges of the Supreme court.
Trying to establish in Tamil Nadu a rule through its Governor would only be a political blunder. This significant verdict has highlighted it.
The judges have furnished in para.29 of their verdict, ordering the release of Perarivalan, as follows:
a) The law laid down by a catena of judgments of this court is well-settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
b) 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.
c) 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 expression for the State Government” as observed by this Court.
Section 302 and the powers of the State
d) The judgment of this Court in M.P. Special Police Establishment (supra) has no applicability to the facts of this case and 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.
e) The understanding sought to be attributed to the judgment of this Court in Sriharan (supra) 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 I of List III.
The Rights to grant public-Pardon
It was stated as an excuse by the advocates representing the Union Government that the team of legal experts entrusted with Rajiv murder case failed to complete the task. The judges pointed out that it was denied by the CBI report. They also asked how the advocates representing the Union Government could argue in favour of the Governor of Tami Nadu. The advocates stated that the President alone has the powers to grant public pardon. Since this is nowhere adumbrated in the Constitution, the judges asked whether the public pardon and releases in the past by the State Cabinet through governors were all valid or invalid. The Supreme Court judges thus raised multiple questions and drilled the advocates who represented the Union government. They concluded that the Supreme Court is entitled to review the delay caused by the Governor in the exercise of the power under Article 161 of the Constitution and arrive at its final verdict. This was clearly and minutely explained before pronouncing the verdict that led to the release of Perarivalan.
Governance through a Governor utterly ridiculous
Our Constitution and legal system are based on British Parliamentary system. Hence, in our country the President and the Governors could be the principal heads of a ruling authority but they cannot arrive at any independent decision. They have no powers to go against the Cabinet. The judges have stressed this by their verdict.
The Verdict of the Supreme Court based on Article 142
f) 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, we do not consider it fit to remand the matter for the Governor’s consideration. 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 already on bail, is set at liberty forthwith. His bail bonds are cancelled.
Will the Governor demit office?
This verdict is an instance of reclamation of the rights of the State of Tamil Nadu. Thiru. R.N. Ravi had sworn in as the Governor of Tamil Nadu under Article 159 of our Constitution. It is not fair on his part to exist in his post after his unconstitutional and anti-constitutional act. He talks much about theism, morality and right conduct. His conscience has to make him take a wise decision.