Supreme Court asks Centre why Rajiv Gandhi case convict Perarivalan cannot be released

Court advises Centre against arguing that Tamil Nadu Governor chose to ignore State government decision to release him

The Supreme Court on April 27 offered the Centre an “escape route” by agreeing to have Rajiv Gandhi assassination case convict A. G. Perarivalan released from jail after serving a sentence of 36 years.

The court advised the Centre against pursuing a “bizarre,” if not plainly “unconstitutional,” argument that the Tamil Nadu Governor chose to “ignore” the State Cabinet’s binding advice to release Perarivalan, who is serving a life sentence and is now on bail, because the President had the authority to take a decision on the mercy plea.

“Why don’t you just agree to have him released? People who have served over 20 years are released... We are also offering you an escape route. Your argument that the Governor does not have the jurisdiction to take a decision on the mercy plea under Article 161 strikes a blow on the federal structure of the Constitution... Under which provision can the Governor refer the decision of the State Cabinet to the President?

“If at all the Governor disagrees with the State Cabinet decision to release him, the proper course for him would be to refer it back to the Cabinet and not forward it to the President, who is bound by the aid and advice of the Centre... That cannot simply be done. We prima facie find the Governor’s action wrong and you are arguing against the Constitution,” Justice L. Nageswara Rao addressed Additional Solicitor-General K.M. Nataraj, appearing for the Centre.

Justice B.R. Gavai, on the Bench, said the Constitution would have to be “re-written” if the Centre’s argument was accepted that in “certain situations” the Governor could refer matters under Article 161 (Governor’s power of mercy) to the President.

“Under what provision in the Constitution is the Governor referring the case to the President? Is this not an issue in which the Governor acts on the aid and advice of the State Cabinet? What is the source of power which allows him to refer the matter to the President? Under Article 161, the Governor has to exercise his powers independently,” Justice Gavai observed.