Governor move on convict’s plea is against federalism: Supreme Court in Rajiv Gandhi assassination case

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 far-reaching consequences on country’s federal structure. Instead, the apex 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 had approached the top court 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 this decision of the governor contrary to the Constitution, 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.

To 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.

The apex court even cited a 1980 decision in the Maru Ram case, which interpreted the power under Article 161. In Maru Ram case, a five-judge Constitution bench provided the remit of power of President and governor under Articles 72 and 161, respectively. It said, “In the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers.”

“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 state cabinet decided) you are taking this stand. We had to push and prod you to decide and finally you make this reference to President,” the bench said on Wednesday.

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 remarked, “Why should we be caught between who should decide on his release. Without deciding this point, we can just pass an order releasing him ignoring the issue at hand. We are giving you an escape route. But if you still insist on arguing, we will decide on this issue and pass a judgment as it has far-reaching consequences.”

Senior advocate Rakesh Dwivedi, appearing for the Tamil Nadu government, said the action of the governor has dangerous consequences. “If decisions of the state cabinet are sent to the President in this manner, (the) Centre will gain control of the state through the governor,” he said.

Senior advocate Gopal Shankarnaraynan, representing Perarivalan, presented a short note to the court showing that since 1950, in convictions for murder (under IPC Section 302), the governor has independently exercised remission power. “We never thought this point will have to be argued in this court, may be in a moot court. If the Centre’s argument is accepted, then every criminal case will be prosecuted by the Centre and not state,” the advocate said.

The court posted the matter for hearing on May 4 and asked the state government to bring the original record of the case. ASG Nataraj also volunteered to find out the status on the petitioner’s mercy plea after it was referred to the President over a year ago.

On the earlier occasion, the Centre explained to the court that the case against Perarivalan was “serious” as he was responsible for a former PM’s death. His death sentence was commuted to life by the Supreme Court in February 2014. According to the Centre, since his death was commuted to life, he was to remain in jail for his entire life.

Perarivalan was among seven persons convicted by a Special TADA [Terrorist and Disruptive Activities (Prevention) Act] court for being part of the conspiracy to assassinate former PM Rajiv Gandhi on May 21, 1991. His role was limited to supplying the battery used in the bomb that led to the tragic incident. In October 2017, former CBI officer, who was the investigating officer in the Rajiv Gandhi assassination case, filed an affidavit in the Supreme Court claiming that during interrogation, Perarivalan had said that he was not aware of the purpose for which the batteries were purchased but this fact was not included in the confessional statement prepared by the then IO, V Thiagrajan, being an exculpatory statement.

Perarivalan had gone inside jail when he was 19 years’ old and now having crossed 50, he developed severe health conditions. His medical condition, coupled with his good conduct in jail, during which period he acquired several educational qualifications, weighed with the top court in granting him bail last month.