Why can’t Rajiv Gandhi assassination case convict be released, SC asks Centre

New Delhi: The Supreme Court on Wednesday directed the Centre to clear its stand, within a week, regarding the release of A.G. Perarivalan, a convict in the assassination of former Prime Minister Rajiv Gandhi.

Why don't you just agree to have him released? People who have served over 20 years are released... We are also offering you an escape route," a bench headed by Justice L Nageswara Rao told Centre's counsel.

Perarivalan has served more than 30 years in jail and currently he is on bail.

The top court took strong objection to the Tamil Nadu Governor sitting on the state Cabinet's recommendation to release Perarivalan for over three years, and then forwarding it to the President.

The bench, also comprising Justice B.R. Gavai, said that the Centre's argument that the Governor does not have the jurisdiction to take a decision on the mercy plea under Article 161 (Governor's power of mercy), strikes a blow on the federal structure of the country.

It queried Additional Solicitor General K.M. Nataraj, representing the Centre, as to what is the provision under which the Governor can refer the decision of the state Cabinet to the President?

The bench said if the Governor were to disagree with the state Cabinet decision to release him, then he would refer it back to the Cabinet and not forward it to the President, who is bound by the aid and advice of the Centre.

Nataraj, however, contended that the Tamil Nadu Governor was right to send Perarivalan's plea to the President, saying "In certain situations, the President, and not the Governor, is the competent authority, especially when a sentence of death has been commuted to life..."

Senior advocate Rakesh Dwivedi, representing the Tamil Nadu government, submitted that law was settled on the power of Governor to decide mercy pleas under Article 161, and the Centre is trying to unsettle it. He added that the Governor had to abide by the aid and advice of the state Cabinet, and the Governors were bound by the state governments' decision.

Pointing out that Perarivalan has served over 30 years, the bench queried Dwivedi, "Then why don't you release him...... Why should he be caught in the middle of who has the authority, President or Governor, to decide?"

The top court agreed with the suggestion of Perarivalan's counsel that the court should also consider making the Governor's exercise of power under Article 161 "time-bound."

After a detailed hearing in the matter, the top court scheduled it for further hearing on May 4.

The top court on April 9, granted bail to convict Perarivalan who was serving a life sentence. It had questioned the Tamil Nadu Governor for not deciding on the state government's recommendation to release all convicts, which was made to the Governor way back in September 2018.