"Crushing Blow To Federalism" : Supreme Court's Prima Facie View On TN Governor Referring Cabinet Decision To President

The Supreme Court, on Wednesday, was of the prima facie view, that the Tamil Nadu Governor's reference of the AG Perarivalan's remission plea to the President, especially when the Councils of Ministers of the State of Tamil Nadu had already sent in its recommendation, would set out a bad precedent and strike at the heart of the federal structure envisaged by the Constitution. "This sets out a bad precedent. This strikes at the federal structure of the country. You cannot just say that if he cannot decide he will send it to the President. Too far-fetched", the Court orally remarked during the hearing. A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was hearing the plea for remission of AG Perarivalan, one of the seven convicts serving life sentence in the case related to the assassination of former Prime Minister Rajiv Gandhi in 1991. Perarivalan had submitted his remission plea to the Governor on 06.09.2018. After keeping the application pending for more than three years, now it appears from the affidavit filed by the Ministry of Home Affairs that the Governor has referred the plea to the President on the ground that the latter is the competent authority to decide the remission application. The Supreme Court's critical remarks about the Governor's conduct assume relevance in the backdrop of the ongoing tussle between the Governor and the Chief Minister of Tamil Nadu on the Bill which seeks exemption from NEET for admission to undergraduate medical courses in the State. In February, the Governor had sent back the Bill, which was re-adopted. Thereafter, the Chief Minister had urged the Governor to forward it for President's assent, which has been pending with the Governor for almost two months now. To add fuel to the flame, on Monday (25th April) the Tamil Nadu Assembly passed an amendment empowering the State Government to appoint Vice-Chancellors to universities. Prior to this the power to appoint VCs was vested in the Governor, who would do so in consultation with the government. Additional Solicitor General, Mr. K.M. Nataraj, representing the Union Government argued that it was well within the authority of the Governor to refer the remission plea to the President, who is the competent authority to decide the plea in the present case. However, the Bench was not satisfied with the submission made by the ASG. Justice Gavai opined that without there being a provision in the Constitution which explicitly confers power on the Governor to refer remission plea to the President, such reference cannot be made as it would render a "crushing blow to the federal structure". "Otherwise we will give a go by to the entire federal structure of the Constitution for everything if the Governor refers it to the President. There has to be a source." Justice Rao opined that prima facie the submission that the Governor could have independently referred the plea to the President does not seem viable under the Constitutional scheme. "We are not prima facie willing to accept your statement - the Governor does not have an independent role under the Constitution to say that the Cabinet is wrong and I'll take a different route." Justice Rao was concerned that if the submission of the ASG is accepted then the Governor would, in essence, have unbridled power to refer pleas to the President, upon any disagreement with the State Cabinet. "If the Council of Ministers sends something to him, if he doesn't like it can he send it to the President? Is there no limitation on power? Can he do that?" Senior Advocate, Mr. Rakesh Dwivedi appearing on behalf of the State of Tamil Nadu submitted that if the Union Government was concerned that the State Government had exceeded its authority, the same could have been challenged and decided by the Constitutional Court, but the Governor himself, could not have referred the plea in view of the fact that there is no Constitutional provision which confers such power on him. Justice Rao noted that the proper course under the Constitution would have been to inform the Council of Ministers about his incompetence to decide the remission plea. Direct reference does not seem to be in consonance with the principles of federalism set out in the Constitution. Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of Perarivalan submitted that it is the consistent stand of the Union Government, for the last 20 years, that the remission plea in cases of the present nature falls within the ambit of the Governor. The fact that the Governor has not decided the remission till date even when the State Cabinet had provided its binding recommendation way back in 2018, he argued, was a ground to seek release of Perarivalan, who has spent almost 36 years (32 years without remission) in prison [Case Title: AG Perarivalan v State of Tamil Nadu | SLP(Criminal) No 10039/2016]Click Here To Read/Download Order

"Crushing Blow To Federalism" : Supreme Court's Prima Facie View On TN Governor Referring Cabinet Decision To President

Sohini Chowdhury

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