Perarivalan’s plea: What the SC said on personal liberty and federalism

The Supreme Court’s observations in the case relating to Rajiv Gandhi assassination convict AG Perarivalan’s mercy plea have raised many eyebrows. The apex court emphasised on Perarivalan’s “personal liberty” while mentioning the Tamil Nadu government’s charge against the Governor of “destroying federalism by bringing the Union government into the matter”.

On May 4, the apex court stated that it did not agree with the Centre’s suggestion that the judiciary should wait till the President of India takes a call on Perarivalan’s mercy plea, referred to him by the Tamil Nadu Governor.

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The SC bench comprising judges L Nageswara Rao and BR Gavai heard the petitions filed by Perarivalan, who sought suspension of his life sentence till the CBI-led multi-disciplinary monitoring agency’s probe is completed.

Importantly, the court observed that the Governor is bound by the aid and advice given to him by the Tamil Nadu Council of Ministers under Article 161 of the Constitution. It then directed the Centre to submit its response by May 10.

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Additional Solicitor General KM Nataraj, appearing for the Centre, told the court: “The file has been referred by the Governor to the President. If the President refers it (mercy plea) back to the Governor, there is no need to discuss this issue at all… The President himself will decide if the Governor could have referred the file to him or not. Leave it to the President to take a call on whether to pardon or reject or send the file back to the Governor…”

The judges retorted: “We thought it was our duty to interpret the law, and not the President’s. The question of whether the Governor was right in referring the state Cabinet’s wish to the President, instead of exercising his duty under Article 161, has to be decided by the court.”

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Matter of personal liberty

When Additional Solicitor General Nataraj said Perarivalan’s file seeking mercy plea came to the Centre only recently and there is ample time for the Centre to return the mercy plea file to the Governor, Justice Gavai said: “The Governor decided to send the file to the President on January 27, 2021… It is May 5, 2022 today… And you are saying it came to you only ‘recently’? This is a matter concerning personal liberty”.

“We will pass the order to release him from jail as you are not ready to argue the case on merits. We cannot shut our eyes to something that is happening against the Constitution and will have to go by the Bible, which is the Constitution. There is nobody above law. There are certain powers conferred to dignitaries, but the working of the Constitution should not come to a grinding halt,” the court said.

Advocate K Sivakumar, who is closely associated with the case, told The Federal that the Supreme Court is likely to release Perarivalan sooner than later. “Firstly, Perarivalan’s conduct was good during his entire time in the prison. Secondly, he had acquired several educational qualifications in all these years. Thirdly, the three-decade prison life has taken a toll on his health. So, the Centre has no point to argue against his case and we are expecting the release orders soon,” Sivakumar said.

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Federalism under threat?

In 2014, Perarivalan’s death sentence was commuted to life imprisonment. In 2015, he submitted a mercy plea with the Tamil Nadu Governor, which remained pending for many years. In January 2021, the governor transferred the petition to the President.

In 2016, Perarivalan had filed a special leave petition in the Supreme Court seeking early release. Hearing this petition in 2018, the Supreme Court had observed that the Governor has the right to decide on this matter. Immediately after, the then AIADMK government recommended the Governor to release all the seven convicts in the Rajiv Gandhi assassination case.

Meanwhile, the apex court started to hear Perarivalan’s release plea from January this year and granted him bail on March 9. “We are informed that the applicant (Perarivalan) was released on parole twice earlier. We are also informed that he is on parole at present. In view of the stand taken by the Union of India that the State does not have power to entertain mercy petitions under Article 161, especially since his death sentence was commuted, the matter has to be heard at length,” the court said then.

On April 27 this year, hearing the petition challenging governor’s right to refer a mercy plea to the President, the Supreme Court observed that if a governor not happy with the decision of the cabinet refers it to the President, it is like “destroying the federalism of the Constitution”.

“The Supreme Court’s observations over federalism and personal liberty, with reference to this case, cannot be seen as a sudden outburst of the judges. It is an effect of a long legal battle and it has witnessed how the Union government is repeatedly stifling the federalist structure,” said advocate S Balamurugan, who is also a member of People’s Union of Civil Liberties, while speaking to The Federal.

“When the Governor has no power under Article 161 to forward the mercy petition to the President, such an act is seen as an attack on the Constitution. A nominated Governor curtailing the powers of an elected state government is an outright attack on democracy itself. That is why the apex court has raised these questions,” Balamurugan added.

The SC’s verdict in the Perarivalan case is expected to have an impact on the six other convicts. Article 21 does not discriminate between an Indian or a foreign national.

“The court would take a decision on the basis of two criteria. One, the conduct of the convicts in the prison and two, whether they could potentially return to the world of crime. If their conduct is good and there is no possibility they would go back to the crime world, pardon will be granted and the convicts released,” Balamurugan said.

‘Congress accepts court’s decision’

Speaking to The Federal, senior Congress leader Gopanna said the party will accept and respect the decision taken by the Supreme Court.

“Rajiv Gandhi’s invaluable life came to an abrupt end because of his assassination. It is the court that granted the death sentence to the convicts. It is the same court that commuted their sentence into life. Now, if the same court decides to release them, we don’t have any problem,” he said.

Gopanna further said the Congress has no revenge to extract on the convicts. If it had any such thought, the party would have immediately sent them to the gallows. “The Supreme Court stated that the convicts had spent nearly two decades in prison which, in itself, was a punishment and therefore commuted their sentences to life. Meanwhile, the family of Rajiv Gandhi has forgiven the convicts, but that doesn’t mean the court should immediately release them. Political parties should stay away from this issue,” Gopanna said.

On the court’s observation on federalism, Gopanna said the Governor cannot take any decision without the consent of the Union government. “If it had been, the matter would have been resolved many years ago,” he said.