The Supreme Court on Wednesday released Rajiv Gandhi assassination case convict A.G. Perarivalan on bail, taking into account the fact he has suffered over 30 years of imprisonment, in spite of vehement objections raised by the Centre.
A Bench of Justices L. Nageswara Rao and B.R. Gavai found Perarivalan was entitled to be released on bail considering his conduct during his long incarceration, including acquisition of educational qualifications, and ill-health.
The Bench directed that Perarivalan's bail would be subject to conditions imposed by the trial court concerned.
He shall have to report to the local police station. The top court did not ask Perarivalan, represented by senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, to surrender his passport as he does not possess one.
Though the Centre, represented by Additional Solicitor General K.M. Nataraj, urged the court to direct Perarivalan to report before the CBI as part of his condition for bail, the Bench decided to spare him the 100 km journey from his native Jolarpettai to the CBI office in Chennai.
Perarivalan is currently on parole, but, according to Mr. Sankaranarayanan, was restricted from either stepping out of his house or meeting anyone.
Governor’s powers
At the end of a nearly hour-long hearing, the court listed Perarivalan's case for further hearing in April on the powers of the Governor to decide the question of his early release, which was approved by the Tamil Nadu Cabinet, and the Governor's reference of the matter to the President.
Mr. Nataraj argued that the State government had no power to entertain the plea for mercy and early release made by Perarivalan, who is serving life sentence after the commutation of his death penalty.
"Here this entire case is based on the argument that his mercy petition is pending and therefore he should be released on bail," Mr. Nataraj argued.
"But he has undergone imprisonment for 32 years," Justice Rao said.
"Yes, but he has been convicted and has to undergo imprisonment for life," Mr. Nataraj said.
"But you cannot keep delaying the consideration of the mercy petition... What is the role of the Governor... sending it to the President?" Justice Rao asked.
Mr. Sankaranarayanan countered that the Centre's argument was "bogey".
"Suddenly after 70 years it dawns on them how can the Governor decide in the case of this one person... Even the mercy plea of co-accused Nalini is pending before the Governor. The Governor has not sent it to the President. There are 1,032 cases in this entire country. We have lists of cases to show that everything is done by the Governor. This sudden change in the constitutional interpretation seems strange," said Mr. Sankaranarayanan.
The Bench decided to grant Perarivalan bail and then hear the larger questions of law later.
"There is sufficient material on his conduct during the long incarceration, acquisition of educational qualifications and his ill-health... Taking into account that he has spent over 30 years' imprisonment, he is entitled to be released on bail in spite of the vehement objections of the government, subject to the final disposal of the case," the court ordered.
Mercy plea
Earlier in the morning, the court said Perarivalan's case concerned the "important issue" about the power or discretion of the Tamil Nadu Governor to sit on a mercy plea for months and then refer it to the President instead of taking an independent call on it under Article 161 of the Constitution. This was despite the fact that the Council of Ministers of the Government of Tamil Nadu had recommended Perarivalan's release on September 9, 2018.
"After sleeping over for five years in the Article 161 [pardon] petition and sitting over the recommendation of the State Cabinet to release the petitioner for more than good two and half years, the Union of India, on February 4, has filed an affidavit [in the Supreme Court] stating that the Governor has sent the petition to the President, whereas the law is clear that the Governor does not have independent discretion," Perarivalan had contended in the Supreme Court recently.
Perarivalan had argued that the "stalemate" over his release from prison was "completely political".
"This is an important issue. We want to go into the question of the Governor's power to sit on an issue approved by the Cabinet... It cannot be like this. Some order has to be passed... He cannot claim immunity," the Bench remarked.
T.N.’s argument
Senior advocate Rakesh Dwivedi and advocate Joseph S. Aristotle, for the Tamil Nadu government, said there were precedents to show that a decision is not just based on the "personal discretion of the Governor".
Perarivalan had argued that he had been "under the hangman’s noose for 16 years, and 29 years in solitary confinement out of the total 30 years of incarceration". He had suffered the pain and trauma of the death row syndrome. "The pain was equally felt by the ageing and fragile parents due to the uncertainty between life and death, and hope and despair," he had submitted.
The Centre, in turn, in an affidavit, had highlighted that the case against Perarivalan concerned the assassination of none other than a former Prime Minister. Forty-three other people had sustained serious injuries in the bomb explosion at Sriperumbudur in Tamil Nadu in 1991.
