Opinion divided on Governor’s options in release of Rajiv case convicts

Some feel he has to abide by Cabinet recommendation, others say he can reject it

Updated - January 31, 2021 01:28 am IST

Published - January 31, 2021 01:11 am IST - CHENNAI

Tamil Nadu Governor Banwarilal Purohit.

Tamil Nadu Governor Banwarilal Purohit.

Opinion is still divided on the options available to Governor Banwarilal Purohit while deciding on the remission of the life sentence of seven convicts in the Rajiv Gandhi assassination case.

On January 22, the Supreme Court said through an altered order that Mr. Purohit would consider, within a week, a plea for pardon filed by one of the convicts, A.G. Perarivalan alias Arivu. On Friday, Chief Minister Edappadi K. Palaniswami called on the Governor and submitted a representation for the release of all the convicts. In September 2018, the Cabinet had recommended their premature release.

According to a section of jurists, the Governor, under the given scheme of constitutional arrangement, has to abide by the advice of the Cabinet on matters such as granting pardons or suspending, remitting or commuting sentences.

K. Chandru, former judge of the Madras High Court, emphasised that as per Article 163, the Governor has to act only by the advice of the Cabinet, a position which was upheld by the Madras High Court in November 1999 when it set aside the decision of the then Governor Fathima Beevi to reject the mercy petitions of four death convicts in the case without taking the Cabinet’s advice. In April 2000, on the Cabinet’s recommendation, the Governor commuted the death sentence of one of the convicts (Nalini) to life sentence.

Mr. Chandru pointed out that recent developments in the Supreme Court had clarified that the Governor could take the decision in the matter.

N.G.R. Prasad, senior advocate, cited the court’s ruling in the Maru Ram versus Union of India (1980), wherein it said, “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or the Governor on their own. The advice of the appropriate Government binds the Head of the State.” He adds, “The Governor cannot come to his own conclusion, ignoring the advice of the Cabinet.” At the same time, the senior advocate pointed out that those who do not agree with the Governor’s decision on remission could always subject it to a judicial review.

However, there is another school of thought. It says the Governor has recourse to other options. A former Governor who served in a southern State said that the Governor could reject the Cabinet’s advice too.

A senior policy-maker in the Tamil Nadu government said the Governor could still refer the matter to the Centre for a fresh opinion, though, during September 2018, the Supreme Court held in the Union of India versus V. Sriharan @ Murugan & Others that the Governor was “at liberty” to decide on Perarivalan’s application. Another senior official said it is unlikely for the Governor to act only on the petition of one convict when the Cabinet’s recommendation for the release of all the seven convicts is pending with him.

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