A judicial course that calls for introspection

News: Recently, the Supreme Court of India ordered the release of A.G. Perarivalan, a convict in the Rajiv Gandhi assassination case.

About the Case

The Governor had not taken a decision on the recommendation of remission by the State Cabinet for a long time.

After sitting over the recommendation for more than two years, the Governor eventually referred the matter to the President of India for his decision.

The Court has invoked the extraordinary constitutional route under Article 142, for grant of remission and consequent premature release, in order to do ‘complete justice’ in the case.

Arguments in favorof the decision

The decision has been hailed by some major political parties as a blow for federalism.

In Sriharan’s case (2016), the court held that murder under Section 302 in the IPC falls within Lists II and III (State and Concurrent lists) of the Seventh Schedule to the Constitution. Therefore, the State was fully empowered to take a call and recommend remission in this case.

In the present case, the court held that it was a simple murder attracting Section 302 of the IPC. Therefore, the Governor’s decision to forward the recommendation to the President is against the letter and spirit of Article 161. Thus, it was against the spirit of federalism.

Why does the court’s decision to do expedient justice demand a constitutional call for introspection?

The decision has stirred up questions on constitutionality of the decision in the context of Article 142.

It seems to be a violation of the separation of powers viz. Executive and Judiciary. In the case, the Court’s bench has exercised the power which was exclusively conferred on the President of India and State Governors under Articles 72 and 161.

In Sriharan’s case (2016), the court held that the term ‘consultation’ stipulated in Section 435 Cr.P.C. implies ‘concurrence’ of the Central government. The remission would have trans-border ramifications and also a central agency was involved.

The entire investigation of the crime was by the Central Bureau of Investigation (CBI) alone.

There are limits on the Governor’s competency (under Article 161), to grant pardon or remission in respect of the offences committed under the Arms Act, 1959, the Explosive Substances Act, 1908, the Passports Act, 1967, the Foreigners Act, 1946, etc.

The court’s reasoning in the present case amounted to reductionism and oversimplification. This is because the case involves commission of the heinous offence against the Indian state, trans-border repercussions and the integrity/security of the country.

The Bench of the SC invoked Article 142 of the Constitution to usurp the power of the Governor (another pillar of democracy) expressly conferred by Article 161 of the constitution on the Governor alone.

The Constitution itself does not lay down any timeframe for the Governor to act on the advice of the Council of Ministers. Therefore, this cannot be ground for the court’s decision for remission.

In such a case, a long consultative process was imperative due to filing of several litigations.

The Tamil Nadu State Assembly resolution and the consequent Cabinet recommendation was to ‘respect Tamil sentiment’. This ignores the sentiments of the victims of the crime

Way Forward

The verdict deserves a relook in the context of the Constitutional angle.

In Rajbala vs State of Haryana (2016), the SC wrote, “A judge should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective i.e., We The people”.

The SC should also pay heed to the distressed cries of the real and imperceptible victims while evolving principles of constitutional moralism and justice dispensation.

Source: The post is based on an article “A judicial course that calls for introspection” published in the “The Hindu” on 1st June 2022.

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