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The Supreme Court on Wednesday said the Tamil Nadu governor was bound by the decision of the state cabinet on the release of AG Perarivalan, who has served over 30 years of his life term in the Rajiv Gandhi assassination case and disapproved of his action of sending the mercy plea to the President, saying it cannot shut eyes to something against the Constitution.
The top court refused to agree with the Centre's suggestion that the court should wait till the President decides on the issue.
A bench of Justices L Nageswara Rao and BR Gavai told the Centre that the governor was bound by the aid and advice given by the Tamil Nadu council of ministers under Article 161 of the Constitution while directing the Centre to submit its response by next week.
"It is a matter to be decided by the court, the decision of the governor was not even needed, he is bound by the decision of the council of ministers. We will have to look into this," the bench told the additional solicitor general KM Nataraj, appearing for the Centre.
Natraj submitted that the file has been referred by the governor to the President.
"If the President refers it (mercy plea) back to the governor, there is no need to discuss this issue at all... The President himself will decide if the Governor could have referred the file to him or not. Whether the reference is right or not, that call must be taken by the President first," he said.
“We will pass the order to release him from jail as you are not ready to argue the case on merits...We cannot shut our eyes to something that is happening against the Constitution and will have to go by the Bible which is the Constitution. There is nobody above law. There are certain powers conferred to dignitaries, but the working of the Constitution should not come to a grinding halt,” the apex court said.
The top court said, “We thought it was our duty to interpret the law and not the President... The question of whether the governor was right in referring the state cabinet's wish to the President, instead of exercising his duty under Article 161, has to be decided by the court."
The apex court also negated the submission of the ASG that the file of the mercy plea recently came to them and said there had been ample time for the Centre to return the mercy plea file to the governor.
“The governor decided to send the file to the President on January 27, 2021... It is May 5, 2022 today... And you are saying it came to you only 'recently'? This is a matter concerning personal liberty,” the bench said.
The apex court said Perarivalan, who is out on bail, was not interested in these "finer" questions of law.
“He wants to be released as he has suffered in prison for over 30 years. We have passed judgments in the past in favour of life convicts who have served over 20 years of their sentence... There cannot be any discrimination in this case whatever the magnitude of the crime...
"He has acquired several educational qualifications in prison. The person's conduct is good in jail, this concerns Article 14 as you are discriminating him against others... He has also acquired several diseases due to the long years in prison... We are not asking you for his release... If you are not willing to consider these aspects, we will consider ordering his release,” the bench said.
Senior advocate Rakesh Dwivedi, appearing for Tamil Nadu, stated that the Centre's submission to wait for the President's decision on the mercy plea was “completely absurd” and said the concept of federalism would suffer a jolt.
Senior advocate Gopal Sankaranarayanan, appearing for Perarivalan, said every time the governor came up with an "excuse" not to decide the issue.
The law officer objected to the submission and said the governor was not a party in the case.
“I thank my friend for pointing out this fact. The governor is not made a party in the case because the advice of the state government is binding on him,” Sankaranarayanan said.
Nataraj said a convict could not criticise the Governor for his actions.
However, Sankaranarayanan said, "I am a citizen. I still have rights. You cannot say I cannot criticise the President or the governor... I will criticise.”
On March 9, the top court had granted bail to Perarivalan while taking note of his long incarceration of over 35 years 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 since 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.