The Centre, under the existing legal and constitutional framework, apparently cannot do much about the Tamil Nadu government’s decision to set free all seven convicted of killing former prime minister Rajiv Gandhi.
Legal experts said if the Centre chooses not to respond to the recommendation of the Jayalalithaa government or even rejects the proposal, the Tamil Nadu government can approach the governor and ask him to exercise his constitutional power of remission.
After the Supreme Court’s verdict, the state government is obligated under the law to consider the convict’s plea for remission of their sentence. However, there are two ways of granting remission.
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Under the CrPC, the state cabinet can resolve to exercise the power of remission vested in it under Section 432. However, this power is subjected to certain conditions.
If a convict has been prosecuted by an agency empowered to make investigation into an offence under any Central Act, prior consultation with the Centre is necessary. The Central government will also have a say in cases where conviction has been brought about under any law upon which the executive power of the Union extends.
The state government, in the present case, is legally bound to consult the Centre since the assassination case was investigated by the CBI – a central agency, and also because convicts were held guilty of charges under laws such as the Arms Act and Explosive Substances Act, to which Central government power extended.
Therefore, if the Centre now decides to sit over the Tamil Nadu government’s proposal or to reject it, there is a way out.
Article 161 of the constitution gives the governor the power to grant pardons and to suspend, remit or commute sentences. Although the convicts’ mercy petitions have already been rejected once by the governor, they can now move for a different relief: remission of sentence in view of the changed circumstances.
There are various judicial pronouncements besides the 41st Law Commission’s report maintaining that the governor is bound to act on the aid and advice of the council of ministers, unless he acts in his own discretion under the exceptions provided for in the Constitution.
Once the governor receives the convicts’ plea for remission, he will have to send it to the state cabinet and subsequently act on it. The will of the state cabinet is already manifest with its recommendation to the Centre and hence it seems Jayalalithaa will prevail.
Speaking to The Indian Express, Yug Mohit Chaudhary, counsel for the convicts, agreed that the convicts can walk out if the state government desired.
Tamil Nadu’s advocate general A L Somayyaji said that while the Centre has to be consulted, it is not mandatory to get its consent before taking a decision. Senior legal officers of the government added that the three-day deadline was fixed by the chief minister to avoid any procedural delay.
Retired Madras High Court Justice K Chandru agreed the state government was within its rights to remit the sentence. “It has already been made clear that consult does not mean consent. Which means even if the Centre has an objection, the state government can go ahead and release the prisoner,” he said.
Retired Supreme Court justice K T Thomas also agreed the state was within its limits to consider remission. “There is no condition other than perhaps goodwill while considering a case. The only question is whether the power is being misused, like freeing a prisoner after just a few years into the sentence. Here, they all have undergone so many years of imprisonment including three who till yesterday were on death row. I personally think that is a long enough punishment for these persons who had no personal enmity against Rajiv and were only obeying orders given by their leadership,” said Thomas, who was on the bench which confirmed the death penalty for A G Perarivalan, Murugan and Santhan.
While Home Minister Sushil Kumar Shinde said the Centre had not received any letter from Tamil Nadu on its move to release the convicts, Law Minister Kapil Sibal said his “understanding of the law is that life sentence means that it is sentenced for life” and added that the government was exploring all legal options.
“I am deeply disturbed at the undue haste shown by the Tamil Nadu government in trying to release these convicts. My understanding of law is that life sentence means that it is sentenced for life. We will examine all these issues closely,” he told The Indian Express. Expressing displeasure over the Jayalalithaa government’s move and calling it a “disturbing trend,” he said, “how can they give relief just like that? One has to look at the nature and intent of the crime. These were terrorists, who had carried out a planned attack and assassinated the former prime minister. And who knows the extent of external involvement.”