Rajiv Gandhi Assassination : President And Not Governor The Competent Authority To Pardon Perarivalan, Centre Tells Supreme Court

In the matter of release of A.G. Perarivalan, the convict in the Rajiv Gandhi assassination case, the Centre on Wednesday submitted that it is the President under Article 72 and not the Governor under Article 161 who is competent to grant pardon/remission."If the entire representation was given to an authority which lacks the jurisdiction to consider the representation, then the right, which is being urged on account of the inaction of the Governor which, he says, infringed his Article 21 right, cannot be recognized at all", advanced ASG K. M. Nataraj."The state government had recommended the release. There were no orders passed by the Governor for over two years. The Governor is acting for the Executive. Now he can't say… If you are aggrieved by the decision of the government, challenge it. This is an extraordinary situation where the recommendation was made by the government and the orders were not passed", observed Justice L. Nageswara Rao.Indicating Article 72, as per which the power of the President to grant pardon and remissions extends to the Executive power of the Union, the ASG took the bench through Article 73, which explains that the Executive power of the Union extends to all the matters on which the Parliament has the power to make laws. Next, as regards Article 161, he advanced that the power of the Governor is restricted to the extent of the Executive power of the state or the power of the state government to make laws.Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, pointed the bench to the proviso to Article 73 which states that the executive power referred to in the Article shall not extend in any State to matters with respect in which the Legislature of the State has also power to make laws, unless expressly provided in the Constitution or in any law made by ParliamentTo buttress his argument, the ASG relied on the majority judgment in the 2014 Sriharan's case, decided by a constitution bench, where the Union of India had challenged the letter dated 19.02.2014 issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposed to remit the sentence of life imprisonment and to release the 7 respondents who were convicted in the Rajiv Gandhi assassination case. "The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah (supra) should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government", the bench had ruled in Sriharan case."Not once has his objection been raised by the Union of India before Your Lordships all these years. In your September 6, 2018 order (in Sriharan's case), Your Lordships said that an application under Article 161 to the Governor has been made and that the Governor will decide the same as deemed fit. There was no objection to it by the Union of India then. They pop up every five years whenever liberty arises and raise objections. From Nanavati till today, for 70 years, all such questions have been within the executive domain of the Governor and have been dealt with by him. Today, the Union of India is saying that what we have been doing for 70 years is wrong, for all the 90 lakh convicts across all jails in the country, the mercy petitions can lie only to the President of India?! They are saying that since the IPC is a Central act, every exercise of every Governor for the last 70 years is wrong?!", argued Mr. Sankaranarayanan."It is obnoxious on the part of the Centre. The Union of India can take up this question, Your Lordships can leave this question open, but this is not a fit case for this. A man who has been languishing in jail long enough cannot be asked to wait for an answer to this question of law raised orally at the last minute on...

Rajiv Gandhi Assassination : President And Not Governor The Competent Authority To Pardon Perarivalan, Centre Tells Supreme Court

Mehal Jain

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