NEW DELHI: The Supreme Court on Wednesday did not agree with the Centre's submission that court should wait for the President to take a call on the mercy plea of Rajiv Gandhi assassination convict A.G. Perarivalan.
A bench of Justices L. Nageswara Rao and B. R. Gavai said that it will place the matter for hearing and the decision of the President would not have any bearing on it, and it will examine the issue raised by the petitioner.
Pointing out to the Centre's counsel that the question was whether the Governor had the authority to refer the mercy plea to the President, it noted that under Article 161 of the Constitution, the Governor was bound by the aid and advice given by the Tamil Nadu Council of Ministers. In September 2018,the Council of Ministers of Tamil Nadu had recommended Perarivalan's release.
The Tamil Nadu Governor had referred the Perarivalan's mercy plea to the President for a decision.
The bench said the Governor had no authority to transfer the mercy plea to the President.
Noting Perarivalan had already served close to 30 years in prison, the bench said in the past, the court had passed judgments in favour of life convicts who have served over 20 years of their sentence and there cannot be any discrimination in this case.
Additional Solicitor General K.M. Nataraj, representing the Centre, contended that the Governor has referred the mercy plea to the President, and if the President refers it back to the Governor, then there is no need to discuss this issue at all. He added that the President will decide if the Governor could have referred the file to him or not.
But the bench said: "We will place the matter for hearing. The decision of the President will not have any bearing on us for sure".
As Nataraj urged the court to leave this decision - whether to pardon or reject, or if he decides to send the matter back to the Governor - to the President, the bench said: "We thought it was our duty to interpret the law and not the President's.......".
Justice Rao told the Centre's counsel: "We cannot shut our eyes to something that is happening against the Constitution. We have to follow our Bible, the Constitution..".
The bench said the main question is, whether the Governor was correct in referring to the state Cabinet's wish to the President, rather than exercising his duty under Article 161, and this has to be decided by the court.
Pointing out that the Governor sent the matter to the President in January last year, the bench said enough time has been given to the Centre. Justice Gavai said, "This is a matter concerning personal liberty." As Nataraj contended that Perarivalan is already out on bail, the bench replied that the sword is still hanging over him.
Citing Perarivalan's good conduct in jail and several diseases which impact his health in prison, the bench said: "If you are not willing to consider these aspects, we will consider ordering his release."
The bench emphasised that the state government has asked for his release and the Governor is bound by the state's advice under Article 161, and the President has no role under this provision.
Senior advocate Rakesh Dwivedi, representing the Tamil Nadu government, disagreed with Centre's argument on waiting for the President's decision on the mercy plea , and added that this is not in the interest of federalism.
Concluding the hearing, the top court asked the Centre to bring on record the referral order of the Governor and scheduled the matter for further hearing on Tuesday.
The top court on April 9, granted bail to convict Perarivalan who was serving a life sentence.