The Supreme Court on Wednesday disagreed with the Central government’s suggestion that the court should wait till the President took a call on Rajiv Gandhi assassination case convict A.G. Perarivalan’s mercy plea referred to him by the Tamil Nadu Governor for a decision.
A Bench of Justices L. Nageswara Rao and B.R. Gavai said the Centre had missed the obvious question posed by the court by a mile. The pertinent question was whether the Governor had, in the first place, the authority to refer the mercy plea to the President.
Under Article 161 of the Constitution, the Governor was bound by the aid and advice given by the Tamil Nadu Council of Ministers in September 2018 to the Governor to release Perarivalan, who has already served over 30 years of his life sentence. The Governor prima facie had no authority to transfer the mercy plea to the President. There was no role for the President here under the Constitution, the court told Additional Solicitor General K.M. Nataraj, for the Centre.
‘We have to follow Constitution’
“We cannot shut our eyes to something that is happening against the Constitution. We have to follow our Bible - the Constitution of India,” Justice Rao addressed the Centre.
Justice Gavai said no authority, however high, could put a spoke in the working of the Constitution.
Mr. Nataraj urged the court, “The file has been referred by the Governor to the President. If the President refers it (mercy plea) back to the Governor, there is no need to discuss this issue at all... The President himself will decide if the Governor could have referred the file to him or not. Leave it to the President to take a call on whether to pardon or reject or send the file back to the Governor...”.
Justice Rao shot back, “We thought it was our duty to interpret the law and not the President’s... The question whether the Governor was right in referring the State Cabinet’s wish to the President, instead of exercising his duty under Article 161, has to be decided by the court”.
Justice Gavai said there had been ample time for the Centre to return the mercy plea file to the Governor.
Mr. Nataraj said, “No, it was only recently the file came to us”.
Justice Gavai told Mr. Nataraj, “The Governor decided to send the file to the President on January 27, 2021... It is May 5, 2022 today... And you are saying it came to you only ‘recently’? This is a matter concerning personal liberty”.
Mr. Nataraj persisted, “The man is out on bail”.
Justice Rao reminded the Centre, “But he has a Damocles’ sword hanging over him”.
The court said Perarivalan was not interested in these “finer questions of law”.
‘There cannot be any discrimination’
“He wants to be released. He has suffered prison for over 30 years. We have passed judgments in the past in favour of life convicts who have served over 20 years of their sentence... There cannot be any discrimination in this case whatever be the magnitude of the crime... Basically, he wants to be free. He has acquired several educational qualifications in prison. He has shown good conduct. He has also acquired several diseases due to the long years in prison... We are not asking you for his release... If you are not willing to consider these aspects, we will consider ordering his release,” Justice Rao told the Centre.
The court also asked why the Centre had to speak for the Governor.
“Why are you interested? The State has asked for his release and the Governor is bound by the State Council’s advice under Article 161. The President has no role under Article 161. In case the Governor has a different opinion, he has to send it back to the State,” Justice Rao told the Centre.
The Council of Ministers of Tamil Nadu had recommended Perarivalan’s release way back in September 9, 2018.
Senior advocate Rakesh Dwivedi, for Tamil Nadu, argued that the prospect of the court waiting for the President’s decision on the mercy plea, as put forward by the Centre, was “completely absurd”. Mr. Dwivedi, along with Tamil Nadu Additional Advocate General Amit Anand Tiwari and advocate Joseph Aristotle, said federalism would go for a toss if that was allowed by the court.
Two distinct powers of mercy
Mr. Dwivedi stated that the President and Governor exercised two distinct powers of mercy under Articles 72 and 161, respectively. The former exercised his power under the aid and advice of the Council of Ministers at the Centre while the latter depended on the State Council of Ministers.
Senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, for Perarivalan, said the Governor had in the past, before referring the mercy plea to the President, never denied his responsibility to take a decision in the case.
“Instead, everytime he [Governor] came up with an excuse not to decide,” Mr. Sankaranarayanan submitted.
Mr. Nataraj objected to the tone of the argument, saying the Governor was not a party in the case.
Mr. Sankaranarayanan reacted, “I thank my friend for pointing out this fact. The Governor is not made a party in the case because the advice of the State government is binding on him”.
Mr. Nataraj said a convict could not criticise the Governor for his actions.
Mr. Sankaranarayanan retorted, “I am a citizen. I still have rights. You cannot say I cannot criticise the President or the Governor... I will criticise”.
The court asked whether the Centre had placed on record the referral order of the Governor.
When the Centre did not come up with the document in court, the Bench posted the case for next Tuesday.
‘He is interested only in his liberty’
Justice Rao said, “We are not going to wait for the President to take a decision... Our point is whether the Governor could have referred the file under Article 161 to the President at all... You produce the file. We will keep this on Tuesday at 2 p.m. We are going to decide and close this matter... He [Perarivalan] is interested only in his liberty”.
Mr. Sankaranarayanan voiced his apprehension whether the case would be rendered fait accompli with the President taking a call before Tuesday.
Justice Rao said, “Let him take... It will not make a difference”.