NEW DELHI: The Supreme Court on Wednesday said it does not agree with Centre’s suggestion to wait for the decision of the President in deciding the mercy plea of A G Perarivalan, one of the convicts in the Rajiv Gandhi assassination case. The court said it would hear the matter on Tuesday.
A bench of Justices L Nageswara Rao and B R Gavai, which said the Governor was bound by the aid and advice of the Tamil Nadu Council of Ministers under Article 161 of the Constitution, asked the Centre to put the document on record on the referral order by the Governor. “AG Perarivalan isn’t interested in the question of law; he is concerned with his liberty,” the top court said, adding it cannot shut its eyes to something that is against the Constitution.
“There’s a hanging sword on his head. He has had good conduct too... We had asked you about the reference being correct. There is no question of discriminating one person against the other. Why don’t we release him? We don’t find it reasonable. It is not about what the President has to do on the reference. It is about the issue of the Governor’s power to refer the Cabinet’s decision to him,” the judges said.
“It is a matter to be decided by the court, the decision of the Governor was not even needed; he is bound by the decision of the council of ministers. We will have to look into this,” the bench told Additional Solicitor General K M Nataraj, counsel for the Centre, who argued there is no question of Perarivalan’s liberty being curtailed as he is out on bail.
“Reference has been made by the Governor to the President. The President has the option to send it back to the Governor or take a decision. The file has been sent to him recently,” he said. Senior advocate Rakesh Dwivedi, appearing for TN, said the question is not for the President to decide. “...The President has an independent power under Article 72 of the Constitution, how can he come in Article 162 (Governor’s power)?” Dwivedi asked.
Prez’s decision won’t have bearing on us: SC Bench
The court said that (TN and Perarivalan) are raising important constitutional issues of destroying federalism by bringing the Central government into it. “... We will place the matter for hearing. The decision of the President will not have any bearing on us for sure...You produce the file. We are going to decide...,” the bench said.