SC uses its power to set free convict

New Delhi: The Supreme Court on Wednesday ordered the release of A.G. Perarivalan – one of the seven convicts in the former Prime Minister Rajiv Gandhi assassination conspiracy case undergoing life imprisonment - holding that the "advice of the state cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution." Releasing Mr Perarivalan taking recourse to its plenary powers under Article 142 of the constitution, the court said, "We do not consider it appropriate to remand the matter for the Governor’s consideration." Finding flaws with the way the then Tamil Nadu Governor Banwari Lal Purohit sat on the September 9, 2018 decision of the Tamil Nadu government for over two-and-a-half-year and then referring the matter to the President on January 25, 2021 that too without taking any decision, the court said, "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." Taking a dim view of the delay on the part of the Governor in not adhering to the decision of the Tamil Nadu government and then referring the matter to the President of India, the top court cited an earlier judgement of the Supreme Court relating to the powers of the Governor under Article 161 of the constitution which said, “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.” Holding that the non-exercise of the power under Article 161 is not immune from judicial review, the court said, “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.