Governor move on convict’s plea is against federalism: SC
NEW DELHI: The Tamil Nadu governor has no authority to refer the pardon plea of AG Perarivalan, convicted for the assassination of former prime minister Rajiv Gandhi, to the President, the Supreme Court told the Union government on Wednesday, adding that pursuing this path would have farreaching consequences on country’s federal structure.
Instead, the court said it was willing to release the convict, who has served 32 years of the life term, without having to decide on the governor’s “constitutionally flawed” decision.
Perarivalan, who was arrested in June 1991, was released on bail by the top court on March 9 this year. He submitted a mercy plea under Article 161 to the Tamil Nadu governor on December 30, 2015 and approached the SC in 2016 over the delay to decide on his clemency. Though the Tamil Nadu government recommended for his release in September 2018, the governor after a gap of more than three years, decided on January 25, 2021 to refer the matter to the President, who is the competent authority to take a call on the mercy plea.
Finding the move of the governor contrary to the Constituto
tion, a bench of justices L Nageswara Rao and BR Gavai said, “Governor has no power to independently decide and refer the matter to President. While exercising power under Article 161 (dealing with Governor’s power to grant pardon), he is bound by the decision of the state council of ministers. Proper course would have been for him to refer the matter back to the state government suggesting that the matter falls within the scope of President under Article 72 (President’s power to grant pardon).”
Additional solicitor general (ASG) KM Nataraj, who was representing the Centre, defended the governor’s decision. “If a constitutional office finds that the competent authority is somebody else, the only remedy available to the person is to refer the matter to that constitutional authority,” he said.
this, the bench asked the law officer under what authority the governor referred the matter to the President. “Here is a man who has undergone 32 years in jail. How do you distinguish him from other persons who have undergone similar punishment and were granted pardon?”
“This will be setting a very bad precedent striking at the very roots of federal setup in our country. If your argument is accepted, then every time cabinet refers to the governor and the governor disagrees, he will refer it to the President,” the bench observed.
“When there is a decision of the government, governor can’t say I differ with you and send it to President… After over three years (since the cabinet decided) you are taking this stand...”
At this point, Nataraj argued, “The governor is not bound to accept the decision of the state. Had he (governor) decided, he would have exceeded his jurisdiction as this matter relates to a death sentence commuted to life under a central legislation. The power of pardon to be exercised in respect of these offences lies within the executive power of the President.”
The court posted the matter for hearing on May 4 and asked the state government to bring the original record of the case.