The Supreme Court on Wednesday, April 27, expressed unhappiness over the pending decision of who will decide whether Rajiv Gandhi assassination convict AG Perarivalan should be released or not. The bench of Justice L Nageswara Rao and Justice B Gavai remarked that the Governor forwarding every decision made by the state government or cabinet to the President may set a bad precedent and affect the federal structure in place. The apex court was hearing the case relating to Perarivalan’s bail and the proposed pardon to be granted to him. The Union government is opposed to granting a pardon to Perarivalan, who was last month granted bail by the Supreme Court.
On Wednesday, the Supreme Court was informed that the Governor has forwarded all the files on the proposed pardon to the President. The apex court wondered why Perarivalan should not be released and why he should be ‘caught up in the question of who will grant his liberation.”
Appearing for the Union government, Assistant Solicitor General (ASG) Nataraj informed the bench that the President is the competent authority to make the decision when the Governor is unable to do so. The ASG said that since the Governor has not taken a call yet, he can forward it to the President.
The Tamil Nadu government also submitted that if this argument is allowed, then every criminal conviction will be decided by the Union government. Appearing for the Tamil Nadu government, senior advocate Rakesh Dwivedi said that the President considers Bills and Constitutional issues, and that the Governor has the right under Article 161 of the Constitution to take a decision in this matter. Article 161 empowers a Governor to pardon a convict in any criminal case.
The state submitted that if the state cabinet decisions are always blocked by the Governor or the Union government, the country's federal system will collapse.
The bench also observed that this will “set a bad precedent against the federal structure of the country” and that for each instance, the Governor may keep referring decisions to the President, blocking Cabinet decisions. “It is against the federal structure of our country to nominate a decision to the President every time the Governor decides on a Cabinet decision in any matter,” the Supreme Court said.
“Where is it stated that something sent to the Governor should be sent to the President to find out whether he has the power to decide or not? Governors can make a decision on their own. Does the Governor decide every case this way?” asked the SC bench. “Will the Governor act on the basis of the President's response to the Cabinet recommendation each time?”
The bench then said that it will decide if there should be any further delay in this case and asked the Governor to submit a reply by Monday. “The Governor is bound by the decision of the cabinet and he cannot act with a separate view regarding the decision of the Cabinet,” the court said. “The Centre may respond in writing if it wishes to respond in any way to the Constitution bench judgment relating to the power of the Governor.”
The court will continue hearing the case next week. The top court was hearing the plea of 46-year-old Perarivalan seeking suspension of his life sentence in the case till the MDMA probe is completed.
The CBI-led Multi-Disciplinary Monitoring Agency (MDMA) is conducting a probe into the aspect of larger conspiracy as per the mandate of the Jain Commission report. The Jain commission of inquiry in the assassination of the former prime minister has recommended a probe into larger conspiracy by the MDMA and it required monitoring /tracking of absconding suspects and the role of Sri Lankan and Indian nationals in the case.
In March this year, the Supreme Court granted Perarivalan bail noting that he has spent almost three decades in prison. "Taking into account the fact that the applicant has spent over 30 years in prison, we are of the considered view that he is entitled to be released on bail, in spite of the vehement opposition by the Centre," the bench said in its order.
Last year, in November, the CBI in its affidavit had told the apex court that the Tamil Nadu Governor has to take a call on the grant of remission to Perarivalan. The CBI said that Perarivalan is not the subject matter of further investigation.
The top court had expressed unhappiness over the pendency of Perarivalan’s plea over the years with the Tamil Nadu Governor. The top court had said, “We don't want to exercise our jurisdiction at this stage but we are not happy that a recommendation made by the government is pending for two years.” In the meantime, the Governor of Tamil Nadu changed - RN Ravi suceeded Banwarilal Purohit in 2021.
The state government had earlier told the top court that the Tamil Nadu Cabinet under AIADMK had already passed a resolution on September 9, 2018 and recommended to the Governor for the premature release of all seven convicts in the case.
Perarivalan's counsel had earlier said that his role was only limited to procuring nine-volt batteries, which were allegedly used in the improvised explosive device (IED) that had killed Rajiv Gandhi. Perarivalan’s plea for remission had gained more strength after a former CBI official in 2017 admitted to omitting a crucial part of Perarivalan’s confessional statement. The officer, Thiagarajan, who had earlier recorded the confession, said in 2017 that he had failed to record that Perarivalan was unaware of the purpose of the two batteries he was asked to purchase. The official also said that Perarivalan did not know the intended use of the batteries, which was revealed after investigation, and expressed remorse that Perarivalan languished in jail for two decades.