Law and compassion

Tamil Nadu Governor Banwarilal Purohit has decided that only the President can decide the issue of granting remission to the seven life convicts in the Rajiv Gandhi assassination case. Is the Governor correct in putting the ball in the President’s court, contrary to the State Cabinet’s advice? It has often been stressed by the Supreme Court that the clemency powers of the President, under Article 72, and the Governor, under Article 161, stand on an equal footing, and are exercised solely on Cabinet advice.

• The only limitation in Article 161 is that it should relate to “the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends”. It may be that the Governor decided that it is beyond the State’s executive power because the Rajiv Gandhi case was tried under a central anti-terrorism law and under CBI probe.
• Further, in a situation arising from the State government’s attempt in 2014 to remit their sentences under the Cr.P.C., the apex court had ruled in 2015 that such remission would require the Centre’s concurrence.
• However, this is not a tenable argument, as the same judgment made it clear that its opinion was limited to the Cr.P.C. and would not bind the sovereign power conferred on the President or the Governor under the Constitution.
• Also, it cannot be forgotten that the apex court had dropped charges under the now-defunct TADA, and sentenced the convicts only under the IPC for the murder conspiracy.
• As the only surviving sentences are under the IPC, there seems to be nothing in law that bars the Governor’s jurisdiction.
• The decision is debatable for the unusual delay in the Governor reaching his conclusion as much for its legal correctness. It took Mr. Purohit more than two years — since the State Cabinet advised him in September 2018 to order the convicts’ release — to decide the question.
• The Supreme Court has been asking him to avoid a situation in which it would have to intervene. One could speculate that the delay reflected the Centre’s concern about releasing those involved in the plot to assassinate a former Prime Minister, and its ramifications for its policy of ‘zero tolerance’ towards terror.
• It is equally a matter of speculation whether the ruling party at the Centre is reserving the issue for appropriate use closer to the Assembly polls.
• It is unfortunate that a new legal question on which authority has the power to decide the issue has been tossed into the equation so late in the day.
• The Court should settle this. The convicts’ continuing incarceration for nearly 30 years, notwithstanding the gravity of their crime, has acquired a humanitarian dimension to many. It is vital that law and compassion, rather than politics and electoral considerations, form the basis for any decision on their release.