The Tamil Nadu government did not mince words in a note to the Supreme Court on the A.G. Perarivalan case when it said the Governor “obstructed” the decision of the State Cabinet to release the convict and acted “ ultra vires” the Constitution by referring his mercy to the President.
The Supreme Court has already made it clear that it found nothing wrong in ordering the release of Perarivalan, considering that he has served over 30 years of his life sentence in the Rajiv Gandhi assassination case. A Bench led by Justice L. Nageswara Rao is scheduled to hear the case on May 4.
The note given by the State government, represented by senior advocate Rakesh Dwivedi and advocate Joseph S. Aristotle, greatly bolsters the case in favour of Perarivalan’s release.
“In the instant case, the Governor has not only obstructed the implementation of the decision of the Council of Ministers, which had the unanimous backing of the Tamil Nadu Legislature, but he also proceeded to refer the matter to the President for his consideration. This reference is completely ultra vires the Constitution. The Governor has no such power under the Constitution,” the State government argued.
Distinct powers
The President and the Governor exercise two distinct powers under Articles 72 and 161, respectively. The former exercises his power under the aid and advice of the Council of Ministers at the Centre while the latter depends on the State Council of Ministers.
“There is no scope for making of a reference under Article 161 to the President... This would amount to rewriting the Constitution and introducing a role for the President and the Union Council of Ministers in Article 161,” Tamil Nadu contended.
The State government said neither the President nor the Governor can question the decision of the Council of Ministers. They cannot exercise their individual judgments while acting under Articles 72 and 161.
“If Governors begin obstructing the decisions taken by their Council of Ministers, it would result in chaos and destruction of democracy based on Cabinet system,” the State government cautioned.
In the last hearing in April 27, the top court itself had advised the Centre against pursuing a “bizarre”, if not plainly “unconstitutional”, argument that the Tamil Nadu Governor chose to “ignore” the State Cabinet’s binding advice to release Perarivalan, who is serving a life sentence and is now on bail, because he found that not he but the President had the authority to take a decision on the mercy plea.
The court had said the Constitution would have to be “re-written” if the Centre’s argument was accepted that in “certain situations” Governors could refer matters under Article 161 to the President.
