The story so far: The Supreme Court on Wednesday exercised the power conferred on it under Article 142 of the Constitution to order the release of former Prime Minister Rajiv Gandhi assassination case convict A.G. Perarivalan. While doing so, the court took into consideration the convict’s prolonged period of incarceration, his satisfactory conduct in jail and during parole, his educational qualifications acquired during incarceration, chronic ailments from his medical records and the 2018 State Cabinet recommendation made to the Governor, to exercise the power under Article 161 of the Constitution and release all seven convicts involved in the case, having been kept pending till date.
Therefore, “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,” the judgment rendered by a Bench of Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna read.
What is Article 142 of the Constitution?
Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses.
Article 142(1) reads: The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
Article 142(2) reads: “Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it. It held that it was not a fit case to be remanded to the Governor for his consideration under Article 161 of the Constitution.
What are Articles 72 and 161 of the Constitution?
Article 72 of the Constitution empowers the President to grant pardons and to suspend, remit or commute sentences in certain cases, and Article 161 empowers the Governor to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
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 the power to make laws and Article 163 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/she is by or under the Constitution required to exercise his/her function in his/her discretion.
In Perarivalan’s case, the Supreme Court recalled that its Constitution Bench had in Maru Ram versus Union of India (1980) authoritatively summed up the position with respect to Article 161. Authoring the verdict for the Bench, Justice V.R. Krishna Iyer (since dead) had written: “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 advise and act under Article 161, the Governor being bound by that advice.”
The Bench also said: “The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued 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.”
However, in so far as the State Cabinet’s September 9, 2018 recommendation to release all seven convicts involved in the assassination case was concerned, the Governor had kept it pending for long and forwarded it to the President in January 2021. Disapproving of such a reference, the Supreme Court on Wednesday wrote: “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.”
It is after such a ruling that the court thought it fit to invoke its extraordinary power under Article 142 to order release of Perarivalan.
History of Article 142
When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118. It was placed before the Constituent Assembly on May 27, 1949 for debate but got adopted on the same day without any debate possibly because everyone agreed that in order to ensure judicial independence, the highest court of the country must be empowered with plenary power to do complete justice.
