The Supreme Court on Wednesday offered the Central government an “escape route” by agreeing to have Rajiv Gandhi assassination case convict A. G. Perarivalan released from jail after serving a sentence of more than three decades.
The court 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 the President had the authority to take a decision on the mercy plea.
“Why don’t you just agree to have him released? People who have served over 20 years are released... We are also offering you an escape route. Your argument that the Governor does not have the jurisdiction to take a decision on the mercy plea under Article 161 strikes a blow on the federal structure of the Constitution... Under which provision can the Governor refer the decision of the State Cabinet to the President?
‘Arguing against Constitution’
“If at all the Governor disagrees with the State Cabinet decision to release him, the proper course for him would be to refer it back to the Cabinet and not forward it to the President, who is bound by the aid and advice of the Centre... That cannot simply be done. We prima facie find the Governor’s action wrong and you are arguing against the Constitution,” Justice L. Nageswara Rao addressed Additional Solicitor General K.M. Nataraj, appearing for the Centre.
Justice B.R. Gavai, on the Bench said the Constitution would have to be “rewritten” if the Centre’s argument was accepted that in “certain situations” the Governor could refer matters under Article 161 (Governor’s power of mercy) to the President.
“Under what provision in the Constitution is the Governor referring the case to the President? Is this not an issue in which the Governor acts on the aid and advice of the State Cabinet? What is the source of power which allows him to refer the matter to the President? Under Article 161, the Governor has to exercise his powers independently,” Justice Gavai observed.
Senior advocate Rakesh Dwivedi, for the State of Tamil Nadu, said the law was settled on the Governor’s power to decide mercy pleas under Article 161.
“The law is settled, they [Centre] are only trying to unsettle it,” Mr. Dwivedi said. The Governor had to abide by the aid and advice of the State Cabinet. The “personal satisfaction” of the Governor was not at play while deciding mercy pleas. Governors were bound by the State governments’ decision.
Council of Ministers’ recommendation
The Council of Ministers of the Government of Tamil Nadu recommended Perarivalan’s release on September 9, 2018. “Article 161 is an executive power. Reserving a mercy plea for the President’s assent is not contemplated at all,” the senior advocate argued for the State.
Mr. Dwivedi said if every decision of the State Cabinet was sent to the President, the Centre would gain control of the State through the Governor, who could hold State decisions to “ransom”.
“Then why don’t you release him... He has already served over three decades... Why should he be caught in the middle of who has the authority, President or Governor, to decide?” Justice Rao asked Tamil Nadu.
But Mr. Nataraj insisted on justifying the Tamil Nadu Governor’s call to send Perarivalan’s plea to the President. “In certain situations, the President, and not the Governor, is the competent authority, especially when a sentence of death has been commuted to life... The President has the authority to decide under Article 72 if the case extends to the executive power of the Union of India... Let the question be argued and decided,” he stated.
Justice Rao replied, “We had given you an escape route, which is to release him [Perarivalan]... But you insist on arguing. Then we will hear and pronounce a judgment on the issue of the Governor’s independent powers under Article 161 to decide mercy pleas”.
Senior advocate Gopal Sankaranarayan, for Perarivalan, said: “This is not an issue which should have been debated in the Supreme Court, may be in moot court competitions”.
The court agreed with Mr. Sankaranarayan and advocate Prabu Ramasubramanian’s request that it should also consider making the Governor’s exercise of power under Article 161 “time-bound.”
“Yes, the Governor takes three-and-a half years to say he has no authority,” Justice Rao acknowledged.
The court scheduled the next hearing on Wednesday.
‘Under the hangman’s noose’
Perarivalan has argued that he had been “under the hangman’s noose” for years. 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 a recent affidavit, highlighted that the case against Perarivalan concerned the assassination of none other than a former Prime Minister. Forty-three other people sustained serious injuries in the bomb explosion at Sriperumbudur in Tamil Nadu in 1991.
