The Supreme Court on Wednesday questioned the constitutional propriety of the Tamil Nadu governor’s decision to refer the remission plea of Rajiv Gandhi assassination convict A.G. Perarivalan to the President, saying such a move strikes at the “very roots” of the country’s “federal structure”.

“Your argument that the governor does not have the jurisdiction to take a decision on the mercy plea under Article 161 (powers of governor), strikes a blow at the very roots of the federal structure of the Constitution. We want to know under which provision can the governor refer the decision of the state cabinet to the President?” a bench of Justices L.N. Rao and B.R. Gavai asked additional solicitor-general K.M. Nataraj, appearing for the Centre.

“If at all the governor disagreed with the state cabinet’s decision to release him, the proper course for him would be to refer the matter back to the cabinet and not forward it to the President, who is bound by the aid and advice of the Union cabinet,” the bench added.

The court was dealing with a special leave petition filed by Perarivalan challenging the delay by the governor in taking a decision on the recommendations made in September 2018 by the state cabinet to release him.

The apex court had last month granted interim bail to Perarivalan while imposing several conditions.

Senior advocate Gopal Sankaranarayan, who appeared for the convict, told the court that if the governor’s decision and the Centre’s justification was accepted, every single case relating to remission of prisoners should be referred to the President.

“We prima facie find the governor’s action wrong. You are arguing against the Constitution,” Justice Rao told Nataraj in response to the latter’s argument that the governor was well within his powers to refer the matter to the President.

“The Constitution will have to be rewritten if your argument is accepted.” The bench adjourned the matter for further hearing till next Wednesday.