Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Key Takeaways

  • Power of Supreme Court under Article 142 of Constitution of India.
  • Pardoning powers of the Governor of the State under Article 161 of Constitution of India.
  • Relevance of Article 161 and 142 in Perarivalan’s case.


Hon’ble Supreme Court ordered the release of one of the life convicts, A G Perarivalan in the Rajiv Gandhi assassination case. At the time of his arrest in the year 1991, he was 19 and was accused for buying two 9-volt batteries that was supposed to be used to make bomb for killing Rajiv Gandhi, who was the then Prime Minister of India. Initially he was given a death sentence along with the other convicts which was later commuted to life imprisonment in the year 2014. After 31 years of his arrest, he finally got bail in the month of March in 2022.

The Hon’ble Supreme Court invoked Article 142 of the Constitution of India to exercise its extraordinary power to decide upon the matters pending before it.

Article 142 explained

Article 142 of the Indian Constitution provides:

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

As per the Article 142 of the Constitution, Hon’ble Supreme Court has got unique power to do “complete justice” in the matters where the laws may not provide a remedy sometimes to a certain party. Hon’ble Supreme Court exercising its jurisdiction may pass any order or decree in the furtherance of providing complete justice in the matters pending before it and any such decree so passed will be enforceable throughout the territory of India like any other laws made by the Parliament. It is a remedy to the litigants who have suffered a lot of illegality and injustice during the proceedings.

The Constitution framers opined that such a provision is required to be included within the Constitution so that, it may provide remedy to the parties who suffer unreasonable delays in their proceedings and are unable to get proper relief. Therefore the Article gives Hon’ble Supreme Court, the unlimited powers to decide upon the matter pending before it in order to grant complete justice to the parties. No law prevailing in India can stop the Apex Court from doing so.

However, Article 142 being curative in nature, it does not confer the Apex Court with the power to supersede the substantive law that is applicable in the case concerned.

Case Background

AG Perarivalan v. State of Tamil Nadu

On May 21, 1991; the former Prime Minister of India, Rajiv Gandhi got assassinated at Sriperumbudur, in which 16 other along with him got killed. As a result, on May 22, 1991, a CB-CID started its investigation on the request of the then State Government, it handed over the case to the Special Investigation Team of CBI under the President’s Rule on May 24 1991.

On May20, 1992; 41 accused were chargesheeted before the TADA trial court in Chennai including the ones that were already dead (12 accused) and the ones who had absconded. Then after a very long trial, i.e. almost 6 years, the TADA Court gave death sentence to 26 accused including Perarivalan on January 28, 1998. The Hon’ble Supreme Court however also upheld the death sentence of the four convicts including Perarivalan and freed 19 other death convicts after more than two years on May 11 1999. After this, Perarivalan and others appealed the Governor of Tamil Nadu (Fathima Beevi) for the Mercy Petition under Article 161 of the Constitution, which was dismissed without any advice from the Cabinet.

Article 161 of the Constitution confers the Governor of the State with powers to grant pardons, reprieves, respites or remissions of punishment or to suspend remit or commute the sentence of any person convicted of any offence against any law relating to matter to which the executive power of the State extends.

The Madras High Court then ruled that the Governor cannot exercise the power of pardon without the advice of Council of Ministers. The Cabinet however, later advised the Governor to give reprieve to Nalini Sriharan and it rejected the case of others including Perarivalan.

After this, in the year 2001, the three death convicts namely Santhan, Murugan and Perarivalan submitted their Mercy Petition to the President of India (Article 72 of the Indian Constitution).

After almost 11 years, on 11 August, 2011, the then President of India, Smt. Pratibha Patil rejected their Mercy pleas. This was followed by the stay order that was issued by the Madras High Court in August 2011, upon the hanging of the convicts that was to be done on September 9, 2011. Late J Jayalalitha who was the Chief Minister of Tamil Nadu at that time also passed a resolution and sought for the commutation of their death sentence. The case was then transferred to the Hon’ble Supreme Court and the Court decided that President’s action to not consider the Mercy plea within a reasonable time was improper and since the three prisoners including Perarivalan had been on death row for the last 11 years due to such delay, it is fit to commute their sentence to life imprisonment. As the proceedings had been going on for around more than two decades, on February 24, 2013, Justice KT Thomas opined that, hanging the convicts after 23 years would actually result in the ‘double jeopardy’, i.e. punishing them for the same offence twice which would be unconstitutional (Article 20 (2)).

The former CBI SP V Thiagarajan also stated that Perarivalan never confessed that he knew the battery that he purchased was supposed to be used for making the bomb. Later on January 21, 2014; Hon’ble Supreme Court reduced the death penalty of the three convicts along with the other 12, to the life imprisonment.

Perarivalan along with others then in 2015 again submitted a Mercy Petition to the Tamil Nadu Governor and sought for release under Article 161 of the Indian Constitution. Since, there was no response from the Governor’s office; they moved the Supreme Court for the same. In August 2017, the Tamil Nadu Government granted parole to Perarivalan for the very first time since his arrest in the year 1991. Because of the Tamil Nadu Governor’s unreasonable delay, the Hon’ble Supreme Court in September, 2018 asserted that the Governor has got right to decide upon the remission petition filed by the convict.

After lapse of more than two years, the Apex Court warned the Governor that the Court will be bound to release the convict due to the inordinate delay from the Governor’s office. The Apex Court stated that the Governor of a State being a Constitutional body cannot sit upon the recommendation made by the State for the release of all the seven life convicts in the concerned assassination case for so long. Then in May 2021, Perarivalan got out on parole and later, the Apex Court granted bail to him in March, 2022. In May 2022, the Hon’ble Supreme Court concluded final hearing and ordered the release of Perarivalan after 31 years of his arrest.

Instances when the Article 142 was invoked:

Ayodhya verdict

The Hon’ble Supreme Court said that Article 142 “embodies both the notion of justice, equity and good conscience as well as a supplementary power to the court to effect complete justice”. In the Ayodhya matter since the judgement was passed in the favour Ram Mandir and therefore in order to prevent injustice against the Muslim party, Hon’ble Supreme Court invoked Article 142 and granted 5 Acres of land in Ayodhya to them outside the disputed area. As the Article confers the extraordinary powers upon the Apex Court to provide complete justice to the aggrieved, the Muslim parties thus cannot be ignored else the justice will not deemed to be delivered.

Bhopal Gas Tragedy Case

The gas leak that took place in Bhopal at Union Carbide India because of the negligence at maintaining the gas chambers, lead to the death of thousands of people, due to the harmful effect of Methyl Isocyanate. The Apex Court in the case therefore, realised that in order to provide relief to the affected people, the Court needs to decide by exercising its extraordinary powers under Article 142, going beyond the existing statutes. It therefore awarded the compensation to the victims by placing itself above the parliamentary laws. Hon’ble Court also stated that there is no specific rule that prescribes for the usage of Article 142 in a certain way.

Munish Kakkar v. Nidhi Kakkar

This was the case about divorce on the ground of irretrievable breakdown of marriage. The appellant filed a divorce petition under Section 13 (1) of the Hindu Marriage Act, 1955 on the ground of cruelty. To this the Hon’ble Supreme Court after considering the facts and background of the case gave decision after invoking Article 142 of the Constitution. The Court opined that when at times the law is unable to provide remedy to the parties, the Supreme Court may exercise its extraordinary powers under this Article to provide complete justice. The further went on to say that a marriage that has not been successful for the last two decades instead of various efforts, is actually a dead letter and continuing with the marriage is going to be fruitless for both the parties which might in addition cause them emotional trauma. It will be better for both the parties as soon as their marriage comes to an end. Therefore, it is better for the parties to move ahead in their lives and live independently and hence, granted a divorce decree in the matter.


Article 142 of the Indian Constitution has conferred extraordinary and unlimited powers upon the Apex Court; however, such powers cannot be exercised in a manner to supersede the substantive laws that are applicable in the case concerned. In India, there are numerous cases pending before the courts, one of the reasons being their extension to unreasonably longer period of time due to various reasons like unavailability or inapplicability of the contemporaneous laws in the concerned matters. This limits the powers of the courts to decide by going beyond such statutory provisions and hence, the matter keeps on extending for years and decades. Article 142 therefore has paved way for the Apex Court to decide the matters based upon the principles of natural justice. If the Hon’ble Court deems it fit to pass a decree as per justice, equity and good conscience, it is not bound to follow the statutory provisions. It provides a curative way to grant complete justice to the parties when the existing laws fail to do so.

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