Push for federalism: Supreme Court judgement in Perarivalan case shifts compass of judicial thinking

Through the recent judgment in A.G. Perarivalan vs. State & Anr. (2022), the Supreme Court of India has fortified the federal architecture laid down in the Constitution of India. While doing so, the court has reaffirmed its position as a vigilant sentinel on the qui vive, guarding against constitutional laxity of Governors. This has now set the course for institutional reforms with serious implications for prisoner release, gubernatorial duties and judicial oversight. As such, the judicial directions issued in this matter will be seen as a turning point in modern constitutional jurisprudence. 

Governor vs. Government

The Constitution endows Governors of States with the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute any sentence where the person serving the sentence has been convicted under an offence of any law, under the purview of the executive power of the State. In the A.G. Perarivalan case, the Supreme Court has settled the law, holding that exercise of the constitutional power of pardon must be in accordance with the aid and advise of the Council of Ministers. The Supreme Court has reiterated that the Governor has no discretion in such matters and, furthermore, recognized that any governmental order effecting commutation and granting release of a prisoner can even be issued without the explicit consent of the Governor. Therefore, it is nothing more than a matter of constitutional courtesy to seek the Governor’s approval in such cases. 

The controversy surrounding A.G. Perarivalan case is that upon commutation of his prison sentence from death to life in 2014, he had filed a petition before the Governor of Tamil Nadu seeking pardon under Article 161 on 30 December 2015. The petition was pending before the office of the Governor when Perarivalan approached the Supreme Court challenging some orders of the Madras High Court. It was at this point, on 6 September 2018, that the Supreme Court Bench led by Justice Ranjan Gogoi enquired as to what the stand of the Governor was. Sensing positive traction in this matter, the Council of Ministers of the Government of Tamil Nadu at the time, under the Chief Ministership of Edappadi K. Palaiswami, passed a resolution on 9 September 2018 to pardon seven prisoners, including Perarivalan. Over the next fifteen months, no decision was forthcoming from the Governor of Tamil Nadu and when the matter was subsequently heard by the Supreme Court, on 4 February 2021, the Union of India informed the Court that the Governor had forwarded the file seeking pardon to the President of India. It is this cumulative inaction over the fifteen-month period and unlawful action of the Governor in forwarding the Cabinet Resolution to the President that ultimately drew the ire of the Supreme Court and culminated in the release of Perarivalan under Article 142 of the Constitution.

Extraordinary Article 142

Article 142 of the Constitution, an extraordinary power vested exclusively with the Supreme Court, allows the highest court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”. This power has been used sparingly but with great effect to ensure that impediments to securing “complete justice” are removed without resorting to procedural technicalities associated with courts. Though, there was no debate on this particular clause on the floor of the Constituent Assembly when it was adopted on 6 June 1949, one can still infer the intent of the drafters of our Constitution from the discussion on Article 136 (which was draft Article 112) on the same date. Looking at the discussions from that date, it is apparent that the Supreme Court, occupying primacy in the judicial hierarchy, was to be endowed with adequate powers to grant special leave and, furthermore, exercise extraordinary powers to enforce its orders or decrees in the pursuit of complete justice. 

This extraordinary power is not totally unique. In the Code of Criminal Procedure, 1973, inherent powers have been granted under Section 482 therein to the High Court to “make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”. Though this provision of law comes close to the powers under Article 142, it is commonly acknowledged that the power of the Supreme Court is wider in amplitude and unbridled in scope and the last seventy years since, the Supreme Court has exercised this provision in a variety of matters. In the case of Supreme Court Bar Association vs. Union of India (1998), the Supreme Court held that Article 142 gives it “unlimited power”, but this has not been without criticism.

Calibrated Judicial Activism

There have been concerns from the bench and the bar regarding the usage of Article 142 and, in some cases, backlash where there has been judicial over-reach into policy or legislative or executive domain. It is in this context that the A.G. Perarivalan case has provided three key outcomes with wide ramifications. Firstly, the judgment fortifies the federal architecture of the country by reaffirming that “the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161” and that “even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion.” This simply and unequivocally shears Governors of any discretionary role when it has not been specifically provided under the Constitution.

Secondly, the Supreme Court has displayed tremendous alacrity when a constitutional vacuum was sought to be created by the inaction of the Governor. In the A.G. Perarivalan judgment, it has been held that “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”. This proposition builds on an earlier view of the Supreme Court in Keisham Meghachandra Singh vs. Hon’ble Speaker (2020) wherein the inaction of the Speaker of the Legislative Assembly of Meghalaya in trying the disqualification petitions under the Tenth Schedule to the Constitution incurred a specific mandamus from the Court to complete the adjudication process in a time-bound manner.  As such, this new-found vigour of the Supreme Court in issuing directions to aid a high sovereign authority to assist them in arriving at a prompt decision is a welcome wake-up call to those who think they are beyond the reach of constitutional accountability.

Finally, those watching the Supreme Court closes in recent months would not have failed to notice that under Justices L. Nageswara Rao and U.U. Lalit, the court has reframed the prison jurisprudence from one of retribution to that of reformation. In a series of judgments over the past six months, we have witnessed the narrative around death penalty evolve in a progressive manner, emphasising significant sentencing reforms. In the present case, Justice L. Nageswara Rao has carefully considered and taken into account Perarivalan’s prolonged incarceration of more than thirty years as well as his conduct in jail and while on parole in addition to his achieving educational qualifications during incarceration, to order his immediate release. This is nothing short of a resounding reaffirmation of the reformative theory in imprisonment and will pave the way for undertaking structural reforms in this domain. 

It is not often that a judgment of the Supreme Court has the potential to shift the compass of judicial thinking. But, the case of Perarivalan has done just that. This judgment has come at a crucial time when the federal fabric of this country is being tested on various fronts. By reiterating the earlier view of the Supreme Court that “the Governor is but a shorthand expression for the State Government”, this is a strong vindication of the traditional constitutional position that the Union cannot bulldoze States and that federalism must be construed as part of the basic structure of the Constitution. Also, equally, while plenty of interest in criminal law jurisprudence in the last twenty years has revolved around the rights of victims, the recognition of the rights of prisoners will create a new wave of thinking in how jails are managed. Most significantly, the outcomes from this case will trouble Governors who have hitherto enjoyed power without accountability and steer them towards upholding constitutional principles.

Manuraj Shunmugasundaram

Author is an advocate practising before the High Court of Madras and a Media Spokesperson for the Dravida Munnetra Kazhagam. 

Link to the Article: https://frontline.thehindu.com/the-nation/push-for-federalism-supreme-court-judgement-in-perarivalan-case-shifts-compass-of-judicial-thinking/article65466670.ece

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