The Tamil Nadu Governor made a grave constitutional error in the issue of AG Perarivalan, said Tamil Nadu’s counsel Rakesh Dwivedi to the apex court on Wednesday, May 11. The Supreme Court was hearing a plea filed by Perarivalan, who is a convict in the Rajiv Gandhi assassination case, seeking suspension of his life sentence. “The real flaw is the Governor going against the state's decision. Even if he had found that the State had no executive power, he could have returned it for reconsideration, but he sat over it and then referred the matter to the President under Article 161! How do you drag the President in this? The Constitution explicitly mentions where the President has to intervene,” Dwivedi contended at the court.
The matter is being heard by a bench of Justices L Nageswara Rao, BR Gavai and AS Bopanna.
The Union government, however, defended the Governor's decision to send the mercy plea to the President. Additional Solicitor General K M Nataraj told the three-judge bench that only the President can decide the plea regarding remission, commutation and mercy plea of an individual convicted under the central law.
The bench expressed shock over the Union government said that the “President had exclusive power” to decide Perarivalan's plea for pardon, and not the Tamil Nadu Governor. The bench further questioned the Union government that if his claim is accepted, if the remission granted by governors so far become invalid as well.
The Additional Solicitor General further claimed that the Tamil Nadu government was trying to take over the power of the president and the union government, and that the power to advice the President on the question of pardon was conferred on the Union Government. The bench questioned what the locus standi was of the union government to represent the Governor.
"The Governor is the head of the State. He represents the State concerned. If at all somebody has to speak for the Governor, it will be the state and not the Union government," the bench said.
The apex court heard the matter for two hours and reserved its verdict after hearing the submissions from the ASG, senior advocate Dwivedi, and senior advocate Gopal Shankaranarayan, for the petitioner.
The Supreme Court was hearing the plea of 46-year-old Perarivalan who sought suspension of his life sentence in the assassination case till the CBI-led Multi-Disciplinary Monitoring Agency (MDMA) probe is completed. The MDMA is conducting an enquiry if there was a larger conspiracy as ordered by the Jain Commission report. The Jain commission of inquiry in the assassination of the former prime minister has recommended a probe into larger conspiracy by the MDMA and it required monitoring or tracking of absconding suspects and the role of Sri Lankan and Indian nationals in the case.
The CBI, in November of last year, had told the apex court that the Tamil Nadu Governor has to take a call on the grant of remission to Perarivalan, and that Perarivalan is not the subject matter of further investigation. Perarivalan was jailed for procuring nine-volt batteries, which were allegedly used in the improvised explosive device (IED) that had killed Rajiv Gandhi.
Earlier, on May 4, the top court said that the President’s decision on the release of Perarivalan will not have any bearing on its decision in his plea for pardon. The court also said that it will be passing the order to release him from jail as the Union government is not ready “to argue the case on merits”.
(With PTI and IANS inputs)