A pitched legal battle between Centre, state over mercy petition
In drawing curtains over the mercy plea of Rajiv Gandhi assassination case convict A G Perarivalan, the Supreme Court was not oblivious to the pitched legal battle between the Centre and Tamil Nadu government before every court whenever the matter came up for consideration.
In drawing curtains over the mercy plea of Rajiv Gandhi assassination case convict A G Perarivalan, the Supreme Court was not oblivious to the pitched legal battle between the Centre and Tamil Nadu government before every court whenever the matter came up for consideration.
The first major confrontation between the state and Centre which the Court noted in its judgment emerged from a communication dated February 19, 2014, sent by the Tamil Nadu government headed by then chief minister J Jayalalithaa to the Centre, proposing to remit the sentence of Perarivalan and six other convicts in the case. The move came within a day after the top court commuted the convicts’ death sentence to life term.
The state’s proposal was made under Section 435 of Code of Criminal Procedure (CrPC) where consultation of the Centre was required, as the matter was under probe by the Central Bureau of Investigation (CBI).
The then Union government headed by prime minister Manmohan Singh, however, decided to approach the Supreme Court for a direction restraining the state from releasing the convicts. The top court granted status quo while referring the matter to a Constitution Bench which decided by majority that Centre will have primacy and its concurrence will be required by the state government in proceeding with the remission for the assassination convicts.
In December 2015, Perarivalan moved a mercy petition before the then Tamil Nadu Governor for remission of his sentence. In March 2016, the state moved a fresh proposal to the Centre, proposing remission of the seven convicts. The top court directed the Centre to consider the proposal within three months. The Centre rejected this proposal in April 2018.
On September 9, 2018, the Tamil Nadu Cabinet passed a resolution recommending the release of the convicts and sent the same to the Governor, who was already in seizure of Perarivalan’s mercy plea.
In the meantime, Perarivalan approached Madras high court, requesting for orders to expedite the investigation into the larger conspiracy in the Rajiv Gandhi assassination case, which was being carried out by the CBI-led multi-disciplinary monitoring authority (MDMA).
The high court, however, dismissed these petitions in March 2015, saying the petition should have approached the Supreme Court. These resulted in the present proceedings before the Supreme Court on which order was passed on Wednesday.
In February 2020, the top court inquired from the Tamil Nadu government on the status of the recommendation made on Perarivalan’s release. The state said that the Governor had not taken a decision on releasing Perarivalan as the final report of the MDMA was awaited. This came as a red herring to proceed further with the case, prompting the Court to seek a response from the CBI on the issue.
In its affidavit in November 2020, the CBI told the Court that no request was made by the Governor seeking the MDMA report and that the mercy petition could be decided independent of the MDMA probe.
As the matter witnessed adjournments on several dates, the court’s insistence for a decision by the Governor prompted Solicitor General Tushar Mehta to appear for the latter on January 21, 2021 and say that a final call would soon be taken on Perarivalan’s mercy plea without any further delay.
On February 4 last year, deputy secretary, ministry of home affairs, filed an affidavit in these proceedings, informing that the Governor had, by order dated January 25, 2021, referred the matter to the President.
After its decision to refer to the President met scrutiny before the Supreme Court, the Centre defended the Governor’s action by stating that the Govenor is not bound by the state government’s aid and advice.
It then went on to rely on Sriharan case to suggest that the Centre will have primacy in deciding remission cases arising out of section 302 of Indian Penal Code.
Both these arguments were rejected by the top court which admonished the “inexplicable delay” shown by the Governor and held his decision to refer to the President as lacking constitutional backing and “inimical” to the federal scheme of Constitution.
