A-G’s advice swung T.N. decision

September 10, 2018 12:00 am | Updated 05:22 am IST - CHENNAI

A-G Vijay Narayan said Governor has ‘unfettered power’ under Article 161

A.G. Perarivalan

A.G. Perarivalan

The Tamil Nadu Cabinet’s decision to recommend the release of the seven life convicts in the former Prime Minister Rajiv Gandhi assassination case, was taken on the strength of Advocate General Vijay Narayan’s opinion that the Governor had “unfettered power” under Article 161 of the Constitution to decide on their release.

Mr. Narayan is learnt to have given the opinion that the Governor could take an independent view of the matter, notwithstanding the Centre’s rejection of the earlier proposal of the Tamil Nadu government to release the convicts.

Article 161 deals with the power of the Governor to grant pardons and to suspend, remit or commute sentences in certain cases.

Sources in the government said the Advocate General’s opinion was sought to help the State Cabinet take a decision.

Last week, the Supreme Court in the Union of India versus V. Sriharan @ Murugan & Others said, “The authority concerned will be at liberty to decide the said application [filed by A.G. Perarivalan @ Arivu before Tamil Nadu Governor under Article 161] as deemed fit.”

Home Ministry stand

In April 2018, a Presidential order issued through the Ministry of Home Affairs turned down the State government’s proposal, mooted in February 2014 and March 2016, to release the convicts.

Earlier, in December 2015 in Union of India v/s V. Sriharan @ Murugan & Others, the court had held that “the expression “consultation” ought to be read as concurrence and primacy must be accorded to the opinion of the Central Government in matters covered under clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C [concerning State government having to act after consultation with the Centre in certain cases, as provided under Code of Criminal Procedure].”

In the light of these two positions, the A-G dealt broadly with two questions — whether the State government could make a recommendation to the Governor to release the convicts, citing Article 161, and whether what is relevant to Perarivalan (in the backdrop of the court’s latest order) was applicable to the other six convicts, whose applications are pending.

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