Tamil Nadu Governor Banwarilal Purohit would take a decision “as per the Constitution” in the next three or four days on the plea for release filed by A.G. Perarivalan, who is undergoing life imprisonment for the assassination of former Prime Minister Rajiv Gandhi in 1991, Solicitor General Tushar Mehta orally informed the Supreme Court on Thursday.
“The Governor will decide as per the Constitution in three or four days,” Mr. Mehta, appearing for the Governor, informed a three-judge Bench led by Justice L. Nageswara Rao.
The court, however, noted in its short order that the “Solicitor General submitted that the application filed by the petitioner [Perarivalan] under Article 161 of the Constitution of India shall be considered within four weeks from today. List this matter after four weeks”.
Reacting to the variation in what Mr. Mehta said and what is recorded in the court order, senior advocate Gopal Sankaranarayanan said Perarivalan’s side was planning to mention the case in court for a clarification.
Mr. Mehta’s submission came in the beginning of the court’s second day of hearing of a petition filed by Perarivalan, senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, highlighting the long delay on the part of the Governor to decide on the Cabinet recommendation.
Though Mr. Mehta’s submission was made during the hearing of Perarivalan’s case, the State Cabinet had made the recommendation to remit the life sentences of seven convicts, including Perarivalan, on September 9, 2018, Additional Advocate General of Tamil Nadu Balaji Srinivasan confirmed. The recommendation to remit their life sentences was advised by the Cabinet under Article 161.
Other than Perarivalan, the other convicts are Nalini, Murugan, Santhan, Jayakumar, Ravichandran and Robert Pyas.
On Wednesday, Justice Rao termed the Governor’s delay “extraordinary”. The Bench too noted how a decision was not forthcoming despite the State government’s recommendation.
A surprise
The new turn of events came as a surprise, as Additional Solicitor General K.M. Nataraj, for the Centre, had argued on Wednesday that the pleas for pardon and release should go to the President instead of the Governor.
The Centre had, for the first time, raised the point about the Governor’s power to grant remission to Perarivalan under Article 161 in November last.
But Mr. Sankaranarayanan had consistently argued that a convict was free to choose between the President and the Governor for pardon.
In earlier hearings, the senior advocate had 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”.
Mr. Sankaranarayanan said the Centre’s rejection in 2018 of the Tamil Nadu government proposal to remit the sentence of the convicts under Section 432 of the Code of Criminal Procedure (CrPC) did not stop the convicts from separately moving the Governor for pardon under Article 161.
The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes”, he had explained from the Sriharan judgment.
Constitution Bench decision
The Constitution Bench, in a majority decision, had held that the 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 wrote to the Centre on March 2, 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.
On September 6, 2018, the Supreme Court asked the Governor to decide the pardon plea as he “deemed fit”.
Three days after the court order, on September 9, the Tamil Nadu Cabinet made the recommendation to the Governor to release the prisoners.
