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A bench of Justices Nageshwar Rao and BR Gavai today remarked that the decision of the President of India on whether or not to release Perarivalan, a convict in the assassination of former Prime Minister Rajiv Gandhi, will not have any bearing in the court deciding on the power of the Governor to refer the decisions of a State's cabinet to the President. 

The above remark was made in light of the Governor of Tamil Nadu referring files pertaining to early release of seven persons who were convicted in the Rajiv Gandhi assassination case to the President's office for approval. It is to be noted that in 2018, the Tamil Nadu government took a Cabinet decision recommending the release of seven Rajiv Gandhi assassination case convicts and sent them to the then Governor Banwarilal Purohit. 

The Top Court is currently hearing the plea by Perarivalan seeking release from the prison. Notably, the Supreme Court had already commuted Perarivalan's death sentence to a life sentence in 2014. 

When the matter came for hearing today, ASG KM Natraj submitted that the Governor has referred the decision to the President and it is now up to the President to decide.

The bench, however, remarked that the question before it is whether the Governor can take a call on such a reference himself. The bench further said that the Governor is bound by the decision of the cabinet.

The bench also said to the ASG that the decision of the governor was not even needed in the case as he is bound by the decision of the cabinet. Justice Nageshwar Rao remarked, "Perarivalan is not interested in fine questions of law, he is interested in being released from jail."

ASG Natraj then replied to this stating that he has already been given bail. To this, the bench retorted noting that there is a 'sword hanging' despite him having been released on bail. 

Gopal Shankarnarayan, Sr. Adv, appearing for Perarivalan, argued that the Governor is making excuses in deciding the issues and that the matter is pending consideration before him since 2018. The ASG objected to this statement by retorting that the Governor's name cannot be taken as he is not a party here.

Gopal Shankarnarayanan replied to this saying, "Exactly, the Governor has immunity. The decision of the State is binding on him. That is why State is brought to the court and not the Governor. The Governor is not reporting to the Central Government. That’s not how it works." 

The bench, at this point, questioned the ASG as to why the Union is defending the Governor's action in the court. The bench remarked,  "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 bench then informed the ASG that the decision of the President will not have any bearing on the question of law before the court. 

Observing thus, the bench adjourned the matter till May 10, 2022 indicating that it will hear and dispose of the question of law on that day.

On the last date of the hearing, the bench remarked that the concept of federalism will be destroyed if the Governor refers recommendation of the State government cabinet to the President for approval.

In March 2022, the Supreme Court granted bail to Perarivalan since he had been in prison for over 30 years. Court had noted that the matter needs to be heard at length owing to the stand taken by the government that the State Government does not have the power to entertain a mercy petition under Article 161 of the Constitution of India, especially when the death sentence has been commuted to life imprisonment. The matter came up today for further hearing on this aspect.

Case title: AG Perarivalan Vs State of Tamil Nadu