The Supreme Court Wednesday asked the Centre why it cannot release A G Perarivalan who has served 36 years of his life term in the Rajiv Gandhi assassination case, noting that the government took a "bizarre" stand that the Tamil Nadu Governor had forwarded the decision of the state cabinet of releasing the convict to the President, who is the competent authority to take a call on the mercy plea.
The apex court said when people who have served lesser periods are being released, then why can't the Centre agree on releasing him.
The Tamil Nadu government said the Centre is only trying to unsettle the settled position in law.
The top court said that prima facie it finds the governor's decision to be wrong and against the constitution as he is bound by the aid and advice of the state cabinet and it strikes a blow on the federal structure of the constitution.
A bench of Justices LN Rao and B R Gavai told Additional Solicitor General KM Nataraj, appearing for the Centre, to seek proper instruction in a week or it will accept the submission of Perarivalan and release him following the earlier decision of this court.
Nataraj said that in certain situations, the President is the competent authority and not the governor especially when a sentence of death has to be commuted to life.
The bench told the law officer that the convict has served 36 years in prison and when people who have served lesser periods are being released, then why can't the Centre agree on releasing him.
We are offering you an escape route. This is a bizarre argument. Your argument that the governor does not have the jurisdiction to take a decision on the mercy plea under Article 161 of the Constitution actually strikes a blow on the federal structure of the constitution. Under what source or provision can the governor refer the decision of the state cabinet to the President", the bench observed.
Justice Rao said that if at all the governor disagrees with the state cabinet's decision to release him, he can at most send it back to the cabinet but cannot forward it to the President.
"We are of the prima facie view that the governor's action is wrong and you are arguing contrary to the Constitution. Governor is bound by the aid and advice of the state cabinet", the bench said.
Justice Gavai said, "If the submission of the Centre is to be accepted then it will be an attack on the federal structure of the Constitution. The constitution will have to be rewritten that in certain situations matters under Article 161 can be referred to the President".
Justice Gavai said that for the past three and half years the governor has taken this stand which is "bizarre ".
"Under what provision in the Constitution has the governor referred the case to the President? What is the source of such a power which allows him to refer the matter to the President? Governor has to act on the aid and advice of the state cabinet, If you read Article 161 carefully, you will find that the governor has to exercise his powers independently", the bench said.
Justice Rao said that why should a convict be caught in the middle of this controversy and why should not he be released after having served 36 years.
"Can the governor refer the matter to the President? Does the governor have the power to refer the decision of the executive to the President? That is the question. What you are arguing has wider ramifications. Therefore you take proper instructions and we will pass the orders", the bench told Nataraj.
Senior advocate Rakesh Dwivedi, appearing for the Tamil Nadu government, said that there are several verdicts of this court to this effect and the Centre is only trying to unsettle the settled position in law.
"Governor has to act with the aid and advice of the state cabinet. The personal satisfaction of the governor is of no good while deciding the mercy petitions under Article 161, he is bound by the decision of the state government", he said.
Senior advocate Gopal Sankaranaryanan, appearing for Perarivalan, said that if that is the case then every single case in the country will be fought by the Central government and not by the State government.
Nataraj referred to Article 72 of the Constitution and said that the President is the competent authority to decide on the mercy petitions.
Sankaranarayanan said that this is not a question that needs to be debated in the Supreme Court but in moot court competition.
He said that this court also consider making the governor's exercise of power under Article 161 of the Constitution time-bound.
The top court directed the state government and Nataraj to produce all the original documents and orders before it the next date of hearing as it will hear the arguments and pass the verdict.
On March 9, the top court had granted bail to Perarivalan while taking note of his long incarceration of over 35years and no history of complaints when out on parole.
It had said the pleas have to be heard finally because of the stand taken by the Centre that the state government does not have the power to entertain the mercy petition under Article 161 (power of the governor to grant remission) of the Constitution in view of the fact that the convict has already taken the benefit of remission earlier when his death penalty was commuted to life imprisonment.
The court has been hearing pleas including the one in which Perarivalan sought suspension of his life sentence in the case till the MDMA probe is completed.
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