Supreme Court Asks Centre To Trace Source Of Power That Was Exercised By TN Governor To Refer Cabinet Decision On AG Perarivalan's Remission Plea To President

While providing time to the Additional Solicitor General, Mr. K.M. Nataraj to make submissions on the issue of reference, a Bench comprising Justices L. Nageswara Rao and B.R. Gavai stated that it would not adjourn the matter till the President took a decision qua the remission application. It clarified that if the Union Government does not insist on deciding the issue of reference, the Bench is 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.

"We will not adjourn the matter awaiting the President's decision. Whatever decision the President is going to take will have no bearing on what we do. The point raised here is whether the Governor could have referred the matter to the President. We told you last time, we are not interested in deciding this issue also, he (Perarivalan) is interested with his liberty. If you don't insist we will follow the precedent of this court and release him.. As you have taken a stand, we will decide it."

Justice Rao noted that while considering the finer questions of law, the Court cannot lose sight of the fact that Perarivalan had undergone 36 years of imprisonment (32 years without remission).

"Perarivalan is not interested in the finer questions of law, he is interested with his liberty. Whatever be the magnitude of the offence, he was in jail for over 30 years."

Perarivalan had submitted his remission plea to the Governor on 06.09.2018. After keeping the application pending for more than three years, now it appears from the affidavit filed by the Ministry of Home Affairs that the Governor has referred the plea to the President on the ground that the latter is the competent authority to decide the remission application.

On the last date of hearing, Senior Advocate, Mr. Gopal Sankaranarayanan, appearing on behalf of Perarivalan and Senior Advocate, Mr. Rakesh Dwidevi, appearing for the State of Tamil Nadu had argued against the Governor's reference for the same being in the teeth of the federal structure envisaged by the Constitution. Mr. Nataraj had defended the reference on the ground that the President under Article 72 is the competent authority to decide the remission plea.

On Wednesday, Mr. Nataraj submitted that because the concerned file was already before the President, he can consider if pardon can be granted. He argued that the President can decide if the remission application can be decided by him. In case he finds that he is not the competent authority he can send it back to the State.

Justice Gavai remarked -

"On the last occasion, arguments were made that the Governor is bound by the decision of the Cabinet. You will have to point out from the Constitution that the Governor has that power."

Mr. Nataraj reiterated that -

"Whether the reference is correct or not, the President can take the first call. Because it has been forwarded to the President. He can grant pardon, reject or send it back."

Justice Rao remarked,

"We thought it is a matter to be decided by the Court, whether the Governor can refer it."

Mr. Nataraj apprised the Bench that the reference was received by the President only recently.

Justice Gavai enquired, "When was it sent by the Governor?"

When the Bench was apprised that the Governor had referred it to the President on 27th Jan, 2021, Justice Gavai reckoned -

"Now we are in 5th May. You say that it is recent? In a matter of personal liberty?"

Mr. Nataraj responded, "So far as liberty is concerned he is out on bail."

Justice Gavai stated, "Isn't there a hanging sword?"

Mr. Dwivedi asserted that though the President can exercise power independently under Article 72, there is no provision in the Constitution for the Governor to make a reference to him. He was afraid that if the same is allowed, it would undermine the federal structure of the country.

"How does the Governor introduce the President, there all federalism goes…How can A.72 and A.161 be merged? How can the President come into A.161?"

Justice Gavai was of the view that the decision pertaining to the validity of the reference had to be taken by the Constitutional Courts.

"The question that falls for us is whether the Governor could have referred it to the President when the Cabinet recommendation was there. The interpretation to be done by this Court or the president."

Justice Rao emphasised that on previous occasions the petitioner and the State had raised serious constitutional issues of the federal structure being destroyed.

Mr. Sankaranarayanan expressed apprehension about the conduct of the Governor who, he submitted, had kept the decision with regard to the remission plea in abeyance for a considerable period of time.

"I have serious reservations about the conduct of the governor, Every time the Governor was asked by the Madras High Court. He gave a different excuse each time."

Mr. Nataraj contended, "The Governor is not before the Court."

Mr. Sankaranaryanan vehemently submitted that the fact that the Governor was not before the Court establishes that the decision of the State Government is binding on him. Therefore, there was no occasion to implead him as a party.

"Why is the Governor not before the court? Because the decision of the State Govt. is binding. That is why Governors are not brought before the Court…Sorry. The Governor is not reporting to the Central Govt. that is not how it works."

Justice Rao was curious that when under Article 161 and 162, the Governor is to act on behalf of the State Government, the Counsel for the State ought to defend him and not the ASG appearing on behalf of the Union Government.

"See Articles 161 and 162. The Governor is acting on behalf of the State. What is your role in this? Why are you defending the Governor?"

Mr. Nataraj submitted -

"If the Cabinet had decided against the scheme of the constitution, that has to be decided."

The Bench adjourned the matter as the reference order, as directed by the Court on a previous occasion, was not placed on record.

[Case Title: AG Perarivalan v State of Tamil Nadu | SLP(Criminal) No 10039/2016]

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