Rajiv case:"Governor has discretion under powers conferred under Constitution to decide on mercy petition"

The union government on Friday informed the Madras High Court that the Governor of Tamil Nadu has the discretion under powers conferred by the Constitution, to decide on the pending mercy petition of Perarivalan, a life convict in the Rajiv Gandhi assassination case.

The Centre stated this in their counter before the bench, comprising Justices R Subbiah and R Pongiappan when the Habeas Corpus Petition by Nalini Sriharan, contending that she was illegally detained in Vellore Prison from September 10, 2018 since the Tamil Nadu Governor has not acted on the cabinet decision of September 9, 2018 to release her under Article 161 of the Constitution, came up beore it.

The counter by the Union Ministry of Home Affairs said four of the seven life convicts, Nalini, Santhan, Murugan and Arivu, filed mercy petitions before the Governor under Article 161 (power of the Governor to grant pardons and to suspend, remit or commute sentences in certain cases).

The Governor, it said, commuted the death sentence of Nalini to life imprisonment and rejected the other three.

The counter said the Ministry received the mercy petitions of the other three on May 4,2000 and these were rejected by the President on August 3 2011. The decision was communicated to the Tamil Nadu Government on August 12 2011.

The three then moved the Madras High Court challenging the rejection order and this was subsequently transferred to the Supreme Court, it said.

The Apex Court on February 18 2014 commuted the death sentence of the three to life imprisonment.

Based on this order, the Tamil Nadu government on February 19 2014 proposed to remit the sentences of all these convicts and the union government was requested to convey their views within three days, the counter said.

The Ministry then filed a Criminal Original Petition before the Supreme Court,challenging the 'arbitrary' decision, it said, adding five member constitutional bench of the Apex Court on December 2 2015 answered the issues referred to it, saying that 'consultation' in reality means 'concurrence'.

The Tamil Nadu Government then sent another letter with a similar proposal to the Ministry of Home Affairs.

The Supreme Court on January 23 2018 directed the Centre to decide on the state government's proposal for the release of the seven convicts within three months.

The counter said the Ministry examined the proposal and it was rejected on April 18 2018  and this was conveyed to the state government.

Based on this decision, the Supreme Court disposed of the CoP pending before it on September 6 2018, stating that Perarivalan had filed an application under Article 161.

The apex court also observed that the authority concerned would be at liberty to decide the application as it deemed fit, which was pending before the Governor.

The counter said the Ministry had already rejected the proposal for release of the seven convicts and that the mercy petition was pending with the Governor, a constitutional functionary, who has the discretion to decide on the petition under powers conferred on him by the Constitution.

The convicts are V Sriharan, T Suthendraraja, Jayakumar Robert Payas (all Sri Lankans),  A G Perarivalan, Ravichandran and Nalini.

All the seven were convicted by a special TADA court for their role in the assassination of former prime minister Rajiv Gandhi on May 21, 1991 during an election rally at nearby Sriperumbudur and sentenced to death but later it was commuted to life imprisonment.