[AG Perarivalan remission] Governor referring every decision of State cabinet to President against federalism: Supreme Court

The Supreme Court on Wednesday asked the Central government why it should not release Rajiv Gandhi assassination convict AG Perarivalan instead of letting him remain imprisoned because of the protracted legal issue of who is the competent authority to grant remission - the Governor or the President [AG Perarivalan Vs State of Tamil Nadu]. .A Bench of Justices L Nageswara Rao and BR Gavai took strong exception to the Governor's decision to send every decision of the Tamil Nadu cabinet regarding remission of sentence of Perarivalan to the President."It sets a bad precedent against the federal structure of country, saying he will refer every decision (of the State to the President)," Justice Rao stated."It strikes at federal structure. Then every time Governor will refer (matter to the President) against Cabinet decision," Justice Gavai weighed in.After Perarivalan's counsel stated in today's hearing that there is still no quietus to the issue even as his conduct in jail and during paroles have been exemplary, the Bench asked Central government's counsel Additional Solicitor General KM Nataraj,"Why shouldn't we release? Why should he be caught between this who should decide release issue?"The matter has been listed for further hearing on May 4. .The Supreme Court had on March 9, granted bail to Perarivalan who had moved the top court seeking remission of his sentence.Perarivalan was convicted and sentenced to death when he was 19 for aiding in making the bomb responsible for the assassination of former Prime Minister of India, Rajiv Gandhi. The Supreme Court had in 2014, commuted his death penalty to life imprisonment on the ground of delay in deciding their mercy petitions.He had initially applied to the Governor for pardon and remission of his sentence on December 30, 2015. Almost three years later, in September 2018, the Supreme Court asked the Governor to decide the pardon plea as he “deemed fit”. Three days after that, on September 9, 2018, the Tamil Nadu Cabinet recommended to the Governor to remit Perarivalan’s sentence and release him forthwith but the Governor is yet take a call on the same.The Supreme Court had, on November 3, 2020 said the investigation into the assassination need not deter the Tamil Nadu Governor from deciding the plea for pardon of convicts like Perarivalan who have been serving their sentence in jail for over two decades.The Central Bureau of Investigation (CBI) had told the Supreme Court in October 2020 that the Governor of Tamil Nadu is the competent authority to decide on request for remission, but the latter has maintained that the President is the competent authority for the same. .In Wednesday's hearing, counsel for Tamil Nadu pointed out that the Governor can only refer bills with constitutional implications to the President. He added that the apart from the charges of murder, the rest of Perarivalan's offences have only 2-3 year jail terms. The Bench suggested to the Central government counsel that they dispose of the case by releasing him, given the top court's orders on those behind bars for long. "In respect of orders for those in jail for more than 25 years, why don't we release and dispose of case?" ASG Nataraj replied stating under President has the power to decide on grant of pardon including the power to take a call on Governor's decision on such issues. .The Bench repeatedly emphasised that there has to be a law enabling the Governor to refer decisions on remission to the President against executive will of the State as in the present case. "For everything if Governor refers to President ... There has to be a source." Justice Gavai said. "If he doesn't like (a decision), can he refer it to the President without limitations, can he do that?", he further queried. Noting the 3-year time taken by the Central government to give its stand in the case, as also the many adjournments, Justice Rao told the ASG,"You going against Constitution Bench judgment. It is decision of government not Governor. He doesn't have individual role to have own view against (view of State) cabinet prima facie." "Governor (is) bound by Cabinet decisions unless (there is an) express proviso (stating) otherwise," Justice Gavai said. The Court eventually adjourned the hearing for Wednesday next week."You do whatever you want we have given you escape route," the Bench told the ASG as the hearing drew to a close. .[Follow our coverage of today's hearing]