In a bizarre move, the Supreme Court on Wednesday asked the Union government why it cannot release A.G. Perarivalan, who has served 36 years of his life sentence in the Rajiv Gandhi assassination case. The court noted that the government took the “bizarre position” that the Tamil Nadu governor had forwarded the state cabinet’s decision to release the convict to the President, who is the competent authority to decide on the mercy plea.
Considering that those who have served shorter sentences are being freed, the Supreme Court asked why the Union government could not agree to release him as well.
According to the Tamil Nadu government, the Centre is just attempting to “unsettle the established legal position.”
The Supreme Court ruled that the governor’s choice was unlawful and in violation of the constitution on the basis of prima facie evidence because he was obligated by the advice and assistance of the state cabinet and because it was a blow to the federal structure of the constitution.
A bench of Justices L.N. Rao and B.R. Gavai instructed Additional Solicitor General K.M. Nataraj, who was representing the Centre, to seek proper instruction within a week, failing which the court will accept the submission of Perarivalan and release him in accordance with an earlier decision of this court.
The President, not the governor, Nataraj said, in some circumstances, is the appropriate authority rather than the governor, particularly when a death sentence must be converted to a life sentence.
It was pointed out to the law officer by the bench that the offender had spent 36 years in jail and that, at a time when individuals who have served shorter sentences are being freed, why can’t the Centre agree to release him?
“We’re providing you a way out of this situation. This is a weird point of view. When you argue, as you have, that the governor does not have the authority to decide on the mercy petition under Article 161 of the Constitution, you are basically attacking the federal structure of the constitution. “The judge inquired as to what authority or legislation allows the governor to send a decision of the state cabinet to the President,” the bench said.
According to Justice Rao, if the governor disagrees with the state cabinet’s decision to free him, he may only send it back to the Cabinet and not convey it to the President of India.
“We believe that the governor’s decision was improper, and we believe that you are arguing in violation of the Constitution. As stated by the court, “the governor is obligated by the assistance and advice of the state Cabinet.”
“If the Centre’s petition is adopted, it would constitute an assault on the federal framework of the Constitution,” Justice Gavai said. ” It will be necessary to rewrite the constitution in order for topics covered by Article 161 to be addressed to the President in specific circumstances.”
Justice Gavai said that the governor had maintained this position for the last three and a half years, which he described as “bizarre.”
In accordance with what clause of the Constitution has the Governor submitted the issue to the President? ” What gives him the authority to recommend a problem to the President, and where does that authority come from? The governor is required to act with the assistance and advice of the state cabinet. “If you carefully read Article 161, you will see that the governor is required to utilise his duties in an independent manner,” the bench said.
Justice Rao questioned why a criminal should be dragged into the centre of this dispute and why he should not be freed after serving 36 years on the solitary confinement.
The governor has the authority to recommend the subject to the President. Is it possible for the governor to report a decision made by the executive to the President of the United States? The question is, what do you do? What you’re discussing has broader repercussions than you realise. As a result, you should follow the correct procedures, and we will pass the orders,” the bench instructed Nataraj.
Deputy Attorney General Rakesh Dwivedi represented the Tamil Nadu government and said that the court has issued multiple decisions to this effect and that the Centre is merely attempting to “unsettle the accepted position in law.”
“The governor must make decisions with the assistance and advice of the state cabinet. When it comes to ruling on mercy petitions filed under Article 161, the governor’s personal pleasure is of no consequence. “He is legally obligated by the judgement of the state government,” he said emphatically.
The senior counsel for Perarivalan said that if this is the case, then every single issue in the nation would be contested by the Central government, rather than by the state governments, and that this is a “disaster for the country.”
Nataraj alluded to Article 72 of the Constitution and said that the President has the ability to rule on mercy pleas, which he did not elaborate on.
In his opinion, this is not a subject that should be argued in the Supreme Court but rather in a moot court competition, according to Sankaranarayanan.
He said that this court is also considering putting a time limit on the governor’s ability to use his powers under Article 161 of the Constitution.
As a result, the state government and Nataraj were ordered to bring all original papers and orders before it on the next scheduled day of hearing, after which it would hear the arguments and render a decision on the case.
Perarivalan was granted bail on March 9 by the Supreme Court, which took into consideration his lengthy imprisonment of more than 35 years and his lack of a history of complaints while on parole.
Earlier, it had stated that the pleas must be heard finally due to the position taken by the Centre that the state government does not have the authority to entertain the mercy petition under Article 161 (power of the governor to grant remission) of the Constitution due to the fact that the convict had already benefited from remission when his death sentence was commuted to life imprisonment earlier.
The court has been examining several petitions, including one in which Perarivalan requested that his life sentence in the case be suspended until the MDMA investigation is concluded.
Published By: Ifa Zamzami