[AG Perarivalan remission] Governor acts on behalf of State; why is Central government defending him: Supreme Court

The Supreme Court on Wednesday orally observed that nobody was above the law and that a Governor of a state cannot stall the working of the Constitution [AG Perarivalan v. State of Tamil Nadu]..A bench of Justices L Nageswara Rao and BR Gavai was hearing a remission plea filed by a convict in the assassination case of former Prime Minister of India Rajiv Gandhi. The specific issue was the power of the Governor to refer such petitions to the President of India when the State Cabinet has given its recommendations."We cannot shut our eyes when there is a violation of the Constitution. It is our Bible. There is nobody above law. There are certain powers conferred to dignitaries, but the working of the Constitution cannot come to a stall," the Court observed.Pertinently, the bench took exception to the Central government defending the Governor's actions. "The Governor acts on the behalf of the State. Why is the Union defending the Governor's action here in court? How is it fine? Obviously, Governor can take a decision contrary to the Cabinet and send the matter to the State. It is for the State to defend the Governor, not Union," the Court demanded. .During the hearing, Justice Rao said, "It is a matter to be decided by this Court. The decision of the Governor was not even needed. Mr. (Additional Solicitor General) Nataraj, he is bound by the decision of the Council of Ministers. We will have to look into this."ASG KM Nataraj replied,"Whether the reference to the President is right or not, that call must be taken by the President first, milords."However, Justice Gavai said,"The Constitution has to be interpreted by this Court or by the Hon'ble President, Mr Nataraj?".The ASG then submitted that the convict has been given bail and the top court must wait for the decision of the President on the reference.At this point, Justice Rao said, "The question here is this: whether the Governor can take a decision like this and refer the matter to the President and do something like this? This is constitutional law. The person's conduct is good in jail, this concerns Article 14 as you are discriminating him against others...We will pass the order to release him from jail as you are not ready to argue the case on merits. The question is about the power of the Governor and not about the President's decision on it.".Senior Advocate Gopal Sankarnarayanan, appearing for the petitioner, submitted that the Governor was making excuses to avoid making decisions. The ASG objected to this and said that Governor's name cannot be taken in a proceeding when he is not a party before the Court. "Yes exactly, that's why we never call the Governor to courts because the State government's word is final for the Governor and that is why they [State governments] are called here to courts. The Governor can't seek such advice from people because the decision of the State government binds him. Here, first the Governor was waiting for the victim's petition, and the same was dismissed by the Court. Then they say CBI, but the CBI denies any representation by the Governor. This is not how things are to be done," Sankarnarayanan submitted..The top court observed that this case raises serious issues of constitutional law, specifically with regard to the power of the Governor to refer such matters to the President. The Court observed that the decision of the President will not have any bearing on the Court. "We will place the matter for hearing. The decision of the President will not have any bearing on us for sure...No one is above the law," Justice Nageswara Rao said. The Supreme Court directed the ASG to argue the case on merits. The matter will be next listed on Tuesday, May 10..Perarivalan was convicted and sentenced to death when he was 19 for aiding in making the bomb responsible for the assassination of former PM Rajiv Gandhi. The Supreme Court had in 2014 commuted his death penalty to life imprisonment on the ground of delay in deciding the mercy petitions. Thereafter, he again filed a mercy petition on December 30, 2015 before the Governor of Tamil Nadu to release him from jail. Then, in 2018, the Supreme Court asked the Governor to decide the pardon plea as he “deemed fit”. Three days after that, on September 9, 2018, the Tamil Nadu Cabinet recommended to the Governor to remit Perarivalan’s sentence and release him forthwith. However, the Governor is yet take a call on the same..The convict has been in jail for almost 30 years and has shown good behaviour, Sankarnarayanan had submitted before the Supreme Court.The Court had, on November 3, 2020 said that the investigation into the assassination need not deter the Tamil Nadu Governor from deciding the plea for pardon of convicts like Perarivalan, who have been serving their sentence in jail for over two decades.Even the Central Bureau of Investigation (CBI) had told the Supreme Court in October 2020 that the Governor of Tamil Nadu is the competent authority to decide on request for remission.On March 9, the Court granted bail to Perarivalan after noting that there were no complaints about his conduct when he was released thrice before on parole..[AG Perarivalan remission] Governor referring every decision of State cabinet to President against federalism: Supreme Court.[Live Reportage from today's hearing]