Last week, the Supreme Court held that the governor of Tamil Nadu was at liberty to decide on a mercy petition filed by AG Perarivalan, who is serving a life sentence for his role in Rajiv Gandhi’s assassination. The court was hearing the Centre’s challenge to a 2014 proposal by Tamil Nadu to free the seven convicted assassins of the former prime minister.

On Sunday, the Tamil Nadu Cabinet resolved to advise the governor to release the convicts, all serving life terms. This has caused a legal conundrum: is the governor bound by the Cabinet’s advice? And even if he agrees to free them, will the convicts be released anytime soon?

In 2014, the Tamil Nadu government tried to invoke its remission powers under Section 432 of the Code of Criminal Procedure to release the convicts. The Centre opposed the move, arguing that since the case had been prosecuted by the Central Bureau of Investigation, the state first needed to take the Centre’s “concurrence” as required by Section 435 of the code.

The dispute went to the Supreme Court, which decided in the Centre’s favour in 2015, ruling that the word “consultation” in Section 435 in spirit meant “concurrence”. In August this year, the Centre denied concurrence to Tamil Nadu on the grounds that releasing the people convicted of assassinating a former prime minister would have “international ramifications” for India.

In its 2015 ruling, however, the apex court also said Section 435 empowering a state government to remit sentences and a governor’s pardoning power under Article 161 of the Constitution rested on different pedestals. This meant that if Tamil Nadu took the Article 161 route to free the convicts, it would not need the Centre’s concurrence.

All seven convicts have since moved mercy petitions before the governor.

Power to pardon

Article 72 of the Constitution empowers the President to pardon any convict. The parallel provision for governor is Article 161:

“Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases: 

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” 

Since state’s executive power extends to all laws on the concurrent list, including the Indian Penal Code and the Criminal Procedure Code, governor has the power to remit sentences handed down under such laws. In the particular matter of Rajiv Gandhi’s assassins, though, the point of concurrence was insisted upon as the case had been investigated by a central agency.

But given that the exercise of governor’s power under Article 161 is constitutional, it does not require the Centre’s concurrence. The aid and advice of the state Cabinet is enough.

It is settled in law that except in matters where governor has discretion or enjoys independent powers, they are bound by the Cabinet’s decision. Governor does not have the option of returning a decision for reconsideration either since the Indian Constitution provides that recourse only for the President. However, governor’s decision, even if made on the aid and advice of the Cabinet, is subject to judicial review. Further, Supreme Court rulings on how governor should make decisions under Article 161 add to the complexity of the present case.

AG Perarivalan is serving a life sentence for his role in Rajiv Gandhi’s assassination. Photo credit: IANS

Governor’s role

In two separate judgements, the apex court has reiterated that governor’s power to pardon cannot be used mechanically. In Epuru Sudhakar, which involved a Congress leader in Andhra Pradesh, the court ruled that political considerations cannot be the basis for granting pardon, and set aside the governor’s clemency order. It said:

“Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone.” 

This ruling is relevant to the matter of Rajiv Gandhi’s assassins if the gravity of their crime is considered. The Tamil Nadu governor has to satisfy himself that releasing a former prime minister’s killers would be “for the welfare of the people”. But can the governor reach such a conclusion when the Centre has made it clear that freeing the convicts would be detrimental to the country?

The Supreme Court reiterated the Epuru Sudhakar ruling in its 2015 judgement holding that the Centre’s concurrence was necessary for Tamil Nadu to free the convicts under Section 435.

In light of these rulings, if the Tamil Nadu governor agrees to release the convicts, his decision is bound to be reviewed judicially. The Supreme Court has made it clear that governor’s non-application of mind while making a decision is grounds for judicial review.

While Rajiv Gandhi’s family has maintained they are not against the convicts being freed, the relatives of 17 other people who were killed along with the former prime minister have not made their positions known. This will make the quick release of the convicts a difficult prospect as the families could move the court against the pardon.

There is a possibility that the Centre will challenge the governor’s order if he accepts the state Cabinet’s advice, not least because it will cause several legal and diplomatic complications. Since three of the convicts are Sri Lankan nationals, what will be their legal status after they are released? Will the Indian government be willing to let foreign nationals convicted of assassinating a former prime minister live in the country? Will it deport them to Sri Lanka, where they are bound to be arrested again? If they propose to move to another country, can India be expected to facilitate such a move?

Clearly, the final chapter of this saga is yet to begin.