Why Not Release AG Perarivalan In Rajiv Gandhi Assasination Case? Supreme Court Asks Centre

In a significant development, the Supreme Court on Wednesday asked the Central Government why can't AG Perarivalan, the convict in the Rajiv Gandhi assasination case, be released, having regard to the fact that the Court has been releasing many prisoners who have served over 25 years of sentence.The Court said that without deciding the legal issue as to who is competent to grant him remission - the Governor or the President- it can release the prisoner, having regard to his long years of incarceration(32 years)."Why don't you release him... Why should he be caught in the middle of who has the authority, President or Governor, to decide?" Justice Rao asked."Without deciding this point, considering the orders passed by this Court in respect to persons who have been in jail for 20-25 years, why don't we pass an order (for release) without deciding that issue(of who is competent to decide remission", Justice Rao further asked.Court criticises TN Governor for referring the matter to PresidentThe Court also was of the prima facie view, that the Governor cannot directly refer the remission plea to the President for his consideration, on the ground that the Council of Ministers of the State had exceeded their authority. The bench said that Governor referring to President the decisions of the State Cabinent would amount to a "crushing blow to federalism". A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was hearing the plea for release 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. On March 9, the bench had granted him bail. Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of the petitioner, submitted then even though there exists a binding recommendation of the State Cabinet with respect to the application for remission submitted by Perarivalan, the Tamil Nadu Governor Governor instead of considering the same has now referred it to the President. On 06.09.2018, Periarivalan had submitted a remission application to the Governor under Article 161 of the Constitution of India. After considering the same, on 09.09.2018, the Government gave recommendation, which is binding on the Governor. On 26.09.2018, the Governor had stated that he would take a call after the Writ Petition pending before the Supreme Court in the matter is decided. Even after the petition was dismissed on 09.05.2019, the Governor has not taken a decision. On 24.09.2021, the Madras High Court in one of the parole proceedings of Perarivalan had recorded that the Governor is awaiting the report of the Multi Disciplinary Monitoring Authority (MDMA), which was probing 'larger conspiracy' into the assassination of Mr. Gandhi. In November, 2021, in the present proceedings, CBI had filed an affidavit stating that there was no request from the Governor seeking the MDMA reports. In November, 2021, the Apex Court was displeased that the application was pending before the Governor for over two years. On 22.01.2021, the Apex Court had asked the Governor to decide the application for remission within a week's time based on the submission made by Solicitor General, Mr. Tushar Mehta that the Governor would take a decision in 3-4 days. However, till date no decision has been taken by the Governor. Now the Ministry of Home Affairs has submitted an affidavit stating that the Tamil Nadu Governor has referred the application to the President, whom he considered to be the competent authority to decide the same. Mr. Sankaranarayanan pointed out that the consistent stand of the Union Government for the last 20 years is that in all cases pertaining to offences punishable under Section 302 IPC, the application for remission would be considered by the Governor. "The consistent stand with respect to pardon powers for the last 20 years of the Union Government before this Court and Madras High Court has been that it is the Governor's remit. The second thing is that from 1950 on all IPC offences, all S. 302 cases were with the Governor." Thereafter, he submitted - "The conspectus of my submission is that when there is a binding recommendation and the Government had not taken a decision it would be fit case for release." "Why don't we release him? 36 years, in any event why should he be caught in the battle of who should decide mercy application?", Justice Rao posed this question to the Counsel for the State of Tamil Nadu.Senior Advocate, Mr. Rakesh Dwivedi appearing on behalf of the State referred to the judgment of the Apex Court Nabam Rebia v. Deputy Speaker And Ors. to demonstrate the remit of the power of the Governor to take an independent call without considering the binding recommendation of the Cabinet. The relevant portion is quoted below - "The above position, leaves no room for any doubt, that the Governor cannot be seen to have such powers and...

Why Not Release AG Perarivalan In Rajiv Gandhi Assasination Case? Supreme Court Asks Centre

Sohini Chowdhury

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