Former Prime Minister Rajiv Gandhi assassination case convict S. Nalini’s counsel M. Radhakrishnan on Wednesday termed as a “big disappointment” the Supreme Court’s decision to release co-convict A.G. Perarivalan by invoking its inherent jurisdiction under Article 142 of the Constitution to do complete justice in any matter pending before it.
The counsel said he expected the Supreme Court to lay down a law and fix a time frame within which the Governor, exercising powers under Article 161 of the Constitution to suspend, remit or commute prison sentences, must take a call on recommendations made by the State Cabinet to release certain convicts.
“Only such a ruling would have put an end to the practice of Governors keeping the Cabinet recommendations pending for years together or referring them to the President, without any authority whatsoever, and thereby deny the right of the convicts to be set free pursuant to decisions taken by the Cabinet,” he said.
He pointed out that in the present case, a State Cabinet recommendation made during All India Anna Dravida Munnetra Kazhagam regime on September 9, 2018 to release all seven convicts involved in the 1991 assassination of Rajiv Gandhi, was kept pending by the Governor for long and then forwarded to the President on January 27, 2021.
While Nalini had filed a writ petition before the Madras High Court seeking a direction to the State government to release her without waiting anymore for the Governor’s nod and the matter was pending, Perarivalan had moved the Supreme Court which, on Wednesday, invoked its powers under Article 142 to order his release.
“Our argument before the High Court was based on the Supreme Court’s 1980 judgment in Maru Ramu’s case. In that verdict, Justice V.R. Krishna Iyer had clearly held that the Governor was bound by the decisions of the State Cabinet and that obtaining his signatures on the file was only a constitutional courtesy.
“The Supreme Court had held that neither the President, under Article 72, nor the Governor, under Article 161, can take unilateral decisions on mercy petitions without the aid and advice of the council of ministers concerned. Therefore, we were expecting a decision on these lines in A.G. Perarivalan’s case too,” Mr. Radhakrishnan said.
He feared that the release of Perarivalan under Article 142 might force all six convicts to approach the Supreme Court seeking similar relief and that it would become difficult for them to convince the High Court that it too could order such release by exercising its power under Article 226 (writ jurisdiction) of the Constitution.
“We are waiting for the Supreme Court’s judgment copy to be out in Perarivalan’s case to find out whether it has provided any scope for the High Court too to order the release of the convicts. We shall plan our further legal strategy after going through the verdict,” he added.
