Rajiv Gandhi assassination: Supreme Court reserves verdict in plea by AG Perarivalan for remission

The Supreme Court on Wednesday reserved its verdict in the plea moved by Rajiv Gandhi assassination convict, AG Perarivalan, seeking remission of his sentence [AG Perarivalan Vs State of Tamil Nadu]..A Bench of Justices L Nageswara Rao, BR Gavai, and AS Bopanna was dealing with the specific issue regarding the power of the Governor to refer such petitions to the President of India when the State Cabinet has already given its recommendation for remission or pardon. Additional Solicitor General KM Nataraj, appearing for the Tamil Nadu Governor, submitted today that it was the Central and not the State governments that held primacy while deciding such pleas when the offence was based on a law legislated by the parliament. This prompted Justice BR Gavai to orally remark, "If your contention is to be accepted, then in every case of murder, only the President will have power (to decide on remission).".The ASG reasoned this was the case as the investigation into the assassination was done by a central agency, and the offence of murder under the Indian Penal Code (IPC) was enacted by the parliament."If somebody encroaches on our powers and decisions, then we have every right to refer," the ASG said.Justice Gavai reiterated his objection, asking, "By that logic States cannot pardon convicts and will have to refer to the President each time?"On this point, counsel for the petitioner also argued that the IPC was an existing law that has been amended from time to time, so the Union government could not claim primacy over it. "So the President has exclusive power for IPC offences? So all pardons by Governors in such offences since last 70-75 years (have been) unconstitutional?", Justice Rao asked..AG 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 top court had, in 2014, commuted his death sentence to life imprisonment on the ground of delay in deciding mercy petitions.Later he 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 later, the Tamil Nadu Cabinet recommended to the Governor, to remit Perarivalan’s sentence and release him forthwith.However, the Governor is yet take a call on the same.In November 2020, the Supreme Court 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) also told the Supreme Court in October 2020 that the Governor of Tamil Nadu is the competent authority to decide on request for remission.However, the Governor has maintained that the President is the competent authority to take a call on remission.In March 2022, the Supreme Court granted bail to Perarivalan who had moved court seeking remission of his sentence of life imprisonment.Until being released on bail on March 9 this year, Perivalan had remained imprisoned because of the protracted legal issue of who is the competent authority to grant remission - the Governor or the President. .The hearings in the matter have witnessed strong remarks from the Bench as to the conduct of the Governor and the Union government defending his decision to refer the remission plea to the President instead of going by the State's positive recommendation towards it.At previous hearings, the Court observed that nobody was above the law and that a Governor of a state cannot stall the working of the Constitution."We cannot shut our eyes when there is a violation of the Constitution. It is our Bible. There is nobody above law. There are certain powers conferred to dignitaries, but the working of the Constitution cannot come to a stall," the Court observed.Pertinently, the Court took exception to the Central government defending the Governor's actions."The Governor acts on the behalf of the State. Why is the Union defending the Governor's action here in court? How is it fine? Obviously, Governor can take a decision contrary to the Cabinet and send the matter to the State. It is for the State to defend the Governor, not Union," the Court demanded.The top court had also observed that the case raises serious issues of constitutional law, and that the decision of the President will not have any bearing on the Court."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 had stated on April 27. The Bench had also 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..[Follow our coverage of today's hearing]