LE Correspondent

New Delhi, May 20, 2022: Observing that 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 of the Indian Penal Code, the Supreme Court has held that 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 1 of List III.

The Larger Bench of  Justice L. Nageswara Rao , Justice B.R. Gavai and Justice A.S. Bopanna held that the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution, observes Top Court.  

The appellant in the present case was the accused arraigned for assassination of Shri Rajeev Gandhi, former Prime Minister of India. The appellant was convicted for offences under the Indian Penal Code, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. He was sentenced to death by the designated TADA Court. However, the conviction and sentence under the TADA Act was set aside.  The review petition filed by the appellant was dismissed.

The appellant filed many mercy petitions which were continuously rejected.Aggrieved thereby, a writ petition was filed in the High Court of Madras which was transferred to this Court. Thereafter, the death sentence of the appellant was commuted to imprisonment for life. By an order dated March 9, 2022, this Court released the Appellant on bail.

The subject matter in the present appeals was pertaining to the correctness of the reference made by the Governor to the President of India on January 25, 2021 without taking a decision on the recommendation made by the State Cabinet on remission of the sentence of the appellant. In view of the same, the Court observed that  the petition preferred by the appellant for remission was favourably considered by the State Cabinet but the Governor did not take any decision on the said recommendation. Ultimately, the Governor, without taking a decision on the recommendation made by the State Cabinet, referred the matter to the President of India. 

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, the Bench opined 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, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.

It was also opined by the Bench that that insofar as offences under Section 302, IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the State would extend, irrespective of whether the subject- matter of Section 302 is considered to be covered by an Entry in List II or an Entry in List III of the Seventh Schedule.

The Court was of the view that the appellant had already spent 16 years on the death row, 29 years in solitary confinement and there had been no complaint relating to his conduct in jail, the. Thus, the Court stated that in the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of power conferred under Article 142 of the Constitution, the Court directed that the Appellant was deemed to have served the sentence in connection with the alleged offences.  Hence, the Appellant, who was already on bail, was set at liberty forthwith and the appeals were accordingly disposed of. 

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