Delay in Perarivalan case ‘extraordinary’, says Supreme Court

The Centre, for the first time, raised the point about the Tamil Nadu Governor’s power to grant remission to Perarivalan under Article 161 of the Constitution in November 2020.

Updated - January 20, 2021 07:12 pm IST

Published - January 20, 2021 05:51 pm IST - NEW DELHI

Rajiv Gandhi assassination case convict A.G. Perarivalan. File

Rajiv Gandhi assassination case convict A.G. Perarivalan. File

The Supreme Court on Wednesday said the Rajiv Gandhi assassination case of convict A.G. Perarivalan is “extraordinary” because the Tamil Nadu Governor has delayed a decision for years despite the State government recommending pardon.

“The government appears to have recommended it. But the Governor is delaying. This is an extraordinary issue,” Justice L. Nageswara Rao, heading a three-judge Bench, observed orally.

Additional Advocate General of Tamil Nadu Balaji Srinivasan remarked, on a lighter note, that, “A gentleman is furiously signing pardons elsewhere. Hope that could have been done here.” He was obliquely referring to the last act of United States President Donald Trump while in office.

“That could have saved us a lot of trouble,” Justice Rao replied to Mr. Srinivasan.

Also read: Centre rejects T.N. proposal to free Rajiv Gandhi killers

Additional Solicitor General K.M. Nataraj, for the Centre, argued that Perarivalan’s pardon plea should go to the President instead of the Governor.

“So, for the past 70 years, we have been doing wrong by sending pardon pleas to the Governors. All prisoners should now go to the President? The Centre pops up every five years to bring something new to this case. This is not the case where questions of law can be canvassed. He [Perarivalan] was in custody and solitary confinement for years. The State government has recommended his release...” senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, for Perarivalan, countered the Centre’s submission.

The Centre had, for the first time, raised the point about the Tamil Nadu Governor’s power to grant remission to Perarivalan under Article 161 of the Constitution in November last year.

Significantly, the submission had come on the heels of a Central Bureau of Investigation (CBI) affidavit saying it was entirely up to the Governor to pardon Perarivalan.

On Wednesday, Mr. Sankaranarayanan said a convict was free to choose between the President and the Governor for pardon. The senior advocate referred to the Constitution Bench’s judgment in the Union of India versus Sriharan of December 2015, which said the “exercise of executive clemency” was “vested in the President or the Governor”.

Also read: SC extends parole of Perarivalan for medical check up

Mr. Sanakaranarayanan said the Centre’s rejection, in April 2018, of the Tamil Nadu government’s proposal to remit the sentence of the convicts under Section 432 of the Code of Criminal Procedure (CrPC) did not stop them from separately moving the Governor for pardon under Article 161 of the Constitution.

The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes”, Mr. Sankaranarayanan explained from the Sriharan judgment.

The 2015 judgment was a product of the plea on which the Centre had challenged the Tamil Nadu government’s first proposal to grant remission to the convicts in a letter dated February 19, 2014.

The Constitution Bench, in a majority decision, had held that States cannot unilaterally remit the sentences of life convicts in cases investigated by a central agency under a central law. The assassination case was probed by the CBI.

In compliance with the 2015 verdict, the Tamil Nadu government had written to the Centre on March 2, 2016 proposing the grant of remission to the convicts. The State government had wanted the Centre to concur.

After a wait of over two years, the Centre, in April 2018, rejected the State’s proposal to release the convicts on remission, saying this was “an unparalleled act in the annals of crimes committed in this country”.

Meanwhile, Perarivalan had applied to the Governor for pardon on December 30, 2015.

On September 2018, with the Centre’s rejection of the State’s remission proposal, the Supreme Court had asked the Governor to decide the pardon plea “as he deemed fit”.

Three days after this court order, on September 9, the Tamil Nadu Cabinet had recommended to the Governor to remit Perarivalan’s sentence and release him forthwith.

The pardon plea has been pending with the Governor for nearly five years now.

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