Perarivalan and Manichan | File photos
Kozhikode: The verdict in the Perarivalan's case may influence attempts to free Manichan, a convict in the 22-year-old Kalluvathukkal hooch tragedy.
The state cabinet recommendation for the release of Manichan is pending with Governor Arif Mohammad Khan. He is yet to decide on the file though it has reached his office weeks back. There are reports that he may ask government for clarification on the recommendation.
In Perarivalan's case, SC held that the advice of the state cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161 of the Constitution.
A three-judge bench headed by Justice L Nageswara Rao, however, said the top court has the power of judicial review of orders of the Governor under Article 161, which can be impugned on certain grounds.
Non-exercise of the power under Article 161 is not immune from judicial review, it said.
"The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor's power to refer a recommendation made by the State Cabinet to the President of India," the bench also comprising Justices B R Gavai and A S Bopanna said.
The top court also said the Governor enjoys immunity under the Constitution concerning 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.
The observations came on a judgement in which the top court ordered the release of A G Perarivalan, who has served over 30 years in jail in the Rajiv Gandhi assassination case invoking its extraordinary power under Article 142 of the Constitution.
The apex court said in the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President and such action is contrary to the constitutional scheme.
"It is relevant to point out that the recommendation made by the State Cabinet was on September 9, 2018, which remained pending before the Governor for almost two and a half years without a decision being taken.
"It was only when this Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for the remission of the appellant's sentence to the President," the bench said.
The top court said that given petitions under Article 161 pertaining 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.
Manichan is part of a group of prisoners to be pardoned as part of 'Azadi Ka Amrit Mahotsav', marking the 75th anniversary of Indian Independence. As the incident had rocked the state, Raj Bhavan is considering the move with caution.
The Kalluvathukkal tragedy that claimed the lives of 31 people and the eyesight of another 500 happened on October 21, 2000, in Kollam. Manichan made underground rooms in his house to prepare hooch. Methanol was used for preparing the spurious liquor which resulted in the disaster. Manichan was sentenced to life term and another 43 years (to be served together) over various charges, including the destruction of evidence.
Due to his 'good behaviour' in the Poojappura Central Jail, Manichan was later transferred to the Open Jail in Nettukaltheri. He is a popular farmer in jail.
Manichan's brothers Kochani and Manikandan were released in November last year in a similar way. Distributor Hairunnisa alias Thatha died in jail in 2009.
Last week, when Manichan's wife approached the Supreme Court seeking the release of her husband, the government submitted its opinion in a 'sealed cover' which the court refused to accept. SC asked Kerala to submit an affidavit instead.
(With PTI inputs)
RELATED STORIES
%20(1).jpg?$p=1ddbabf&q=0.8&f=16x11&w=104)
