Supreme Court quizzes Centre on Guv’s power to refer Rajiv case convict’s mercy plea to President

The Supreme Court on Wednesday sought to know from the Centre its locus standi in defending the Tamil Nadu Governor’s decision to refer a recommendation by the state government on the premature release of convicts in the Rajiv Gandhi assassination case to the President.

A bench of Justices L Nageswara Rao and B R Gavai, which reserved judgement on a writ petition filed by convict A G Perarivalan, also quizzed Additional Solicitor General K M Nataraj about the constitutional provisions which allowed the governor to refer the matter to the President.

“We 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,” the bench asked the counsel.

Nataraj submitted in all cases the Governor is represented by the state government. However, when a decision by the state government is in the teeth of the constitutional scheme, then the Governor has the power to refer the matter to the President.

“In this case the situation is peculiar, the government has taken a stand, which is contrary to constitutional scheme, so the Governor is well within his power to refer it to the President,” he said.

The court, however, said if the submission is accepted then all the cases wherein remission is sought for the offence of murder, the plea has to be made to the President.

Wouldn’t it go against the federal structure, the court asked him.

In case the Governor was not willing to accept the recommendation, he could have sent the matter back to the Cabinet for reconsideration, the bench said.

Nataraj, for his part, maintained that the central government would have the power to decide pardons pertaining to the Indian Penal Code, as the subject fell on the concurrent list.

“So all pardons granted by the Governor under Article 161 for offences of murder will be null and void,” the bench asked him.

Relying upon V Sriharan alias Murugan case, Nataraj submitted that when a subject falls under the ambit of executive power of both the State and Centre, the primacy would be given to the Centre in terms of Article 246 (subject matter of laws made by Centre and State) and Article 254 (repugnancy) of the Constitution.

‘SC should intervene’

During the hearing, the Tamil Nadu government, represented by senior advocate Rakesh Dwivedi, submitted that the Governor’s decision raised a serious problem, and the top court should intervene.

On May 5, the top court said the President has got no role in deciding a mercy plea by the convicts and it would adjudicate if the Governor had the authority to refer the matter to the top constitutional office.

Under Article 161 of the Constitution, the Governor was bound by the aid and advice given by the Tamil Nadu’s Council of Ministers, it said.