Perarivalan Case : Could Tamil Nadu Governor Refer Decision Of State Cabinet To President?Supreme Court Reserves Judgment

The Supreme Court, on Wednesday, reserved judgment in a plea filed by A.G. Perarivalan, the life convict in the Rajiv Gandhi assassination case, seeking release from the prison based on the recommendation made by the State Government in September 2018. A Bench led by Justice L. Nageswara Rao clarified that the judgment so reserved is limited to the issue - whether the Governor could have referred the decision taken by the Council of Ministers of Tamil Nadu to grant early remission to Perarivalan, to the President for his consideration. On Wednesday, Additional Solicitor General, Mr. K.M. Nataraj argued that under Section 432 of the CrPC, which deals with power to suspend or remit sentence, its sub-clause 7 states that, in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate government to consider pleas of remission. Article 73 of the Constitution dealing with the extent of power of the Union was relied upon to demonstrate that executive powers of the Union extends to the matters with respect to which Parliament has power to make laws. Referring to Article 161, which deals with the power of the Governor to grant remission, he asserted that the power under the provision is limited to offences against laws relating to a matter to which the executive power of the State extends. He argued that though the Indian Penal Code is placed in the concurrent list, it is a law made by the Parliament and hence applying the principles laid down in Articles 246 to 245, in case of repugnancy, the executive power of the Union Government would take primacy. According to him, the repugnancy in the present matter was with respect to who has the power to decide remission plea. Per-contra, Senior Advocate, Mr. Rakesh Dwidevi, appearing for the State of Tamil Nadu, argued that as per the proviso to Article 73, the executive power of the Union Government would not extend to matters with respect to which the Legislature of the State has also power to make laws, until and unless the same is explicitly mentioned in the Constitution or any Central Law. He submitted that no such saving clause is there either in IPC or CrPC. It was also averred that IPC is an existing law and cannot be said to be a law made by the Parliament. Moreover, it was argued that different provisions of the IPC are covered by entries in different lists of the Schedule VII of the Constitution and the same ought to be considered while determining the extent of executive power of the State. However, it was emphasised that the main issue is the reference made by the Governor. There are neither any provisions in the Constitution nor any precedent to defend such reference. Mr. Dwivedi was of the opinion that at the most the Governor could have sent the recommendation back to the Cabinet On 06.09.2018, Perarivalan moved his remission plea. The State Cabinet had made recommendations for his early remission on 09.09.2018. After keeping the application in abeyance for almost 3 years, it appears from the affidavit filed by the Ministry of Home Affairs that the Governor has referred the decision taken by the Council of Ministers of Tamil Nadu to grant him remission to the President for his consideration. On a previous occasion, the Bench asked the Central Government why can't Perarivalan, who has served almost 36 years (32 years without remission)be released, when the Court has been releasing prisoners who have served over 25 years of sentence. On the last date of hearing it was keen to release him on the basis of the precedent set out by the Apex Court, on the ground of right to equality guaranteed under Article 14 of the Constitution of India. Mr. Nataraj has impelled the Court to decide on the issue of reference before deciding on his release. Earlier, Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of Perarivalan and Mr. Dwidevi argued against the Governor's reference for the same being in absolute derogation of the federal structure envisaged in the Constitution. Appearing before the Bench, on Wednesday, Mr. Nataraj submitted, at the outset, that the prayer being sought was beyond the scope of the original matter. Noting that relevant developments took place only when the matter was pending before the Apex Court, Justice Rao asked him to not go into technicalities and argue on the constitutional issue of reference. Recalling a query raised on the last date of hearing, he reminded Mr. Nataraj - "We also asked you to clarify your locus standi to defend the Governor. The Governor is the head of State. If at all it should be the State defending him." Mr. Nataraj sought to distinguish the present case from all other cases where the Governor is represented by the State Government. He argued that when the State Government's decision is in the...

Perarivalan Case : Could Tamil Nadu Governor Refer Decision Of State Cabinet To President?Supreme Court Reserves Judgment

Sohini Chowdhury

Tags