New Delhi: Legal opinion is sharply divided on the pardon powers of the Tamil Nadu Governor under Article 161 of the Constitution on the release of seven life convicts viz Murugan, Santhan, Perarivalan, Nalini, Robert Pius, Jayakumar and Ravichandran as per the Tamil Nadu government's decision recommending their release on September 9.
Senior Advocate Rakesh Diwedi, who appeared for Tamil Nadu government in this case, is of the view that the Governor under Article 161 exercises discretionary powers in granting pardon, which cannot be done by him independently. He will have to abide by the ‘aid and advice’ of the Council of Ministers.
Since the State government had already recommended the release of seven life convicts he must decide the matter expeditiously and at the earliest though no time limit has been prescribed.
He said the Governor's power has great value and he will have to consider many things before rendering a decision.
Mr. Diwedi said the fact that the seven convicts are involved in the killing of a former Prime Minister of our country is an important consideration. Apart from the Cabinet recommendation, equally the Governor will have to take note of the unanimous resolution passed by the Tamil Nadu assembly, which would mean that the resolution has the support of the entire people of Tamil Nadu.
Further, since the seven convicts are in jail for over 27 years, and some of them were in solitary confinement till their death sentence was pending, the long delay in disposal of mercy petitions by the President which resulted in the apex court commuting the death sentence of Murugan, Santhan and Perarivalan should weigh in favour of their release. When the Supreme Court in recent times is giving so much importance to personal liberty, their continued incarceration in jail is cruel and inhuman.
The fact that LTTE is not in existence is also a relevant factor before the Governor to accept the recommendation. When the killers of Mahatma Gandhi, Father of Nation were released after serving 14 years in jail, there is no reason why the Rajiv Killers who were pardoned by the family members of late Rajiv Gandhi should not be released.
The Supreme Court last week said that the Governor of Tamil Nadu was at liberty to consider the mercy plea filed by A.G Perarivalan in December 2015 and this has triggered the debate for the release of others also who are similarly placed. They had also sent representations to the government for pardon. The mercy plea filed by Perarivalan pending before the Governor since December 30, 2015 could not be decided in view of the pendency of the petition filed by the Centre in February 2014 opposing the State's proposal to release them.
On September 6 the apex court gave a ray of hope by passing an order to this effect “it appears that an application under Article 161 of the Constitution has been filed by Perarivalan. Naturally, the competent authority will be at liberty to decide the said application as deemed fit.” The court closed the petition filed by the Centre challenging Tamil nadu’s proposal to release the convicts.
Senior advocate Mohan Parasaran, who as Solicitor General moved the apex court on February 20, 2014 and got a stay of the release of seven convicts, is of the view that in this case the Governor is bound to go by the aid and advice of the Council of Ministers. Governor will have to take note of the sentiments of the people of Tamil Nadu and the support of all the major political parties favouring their release.
Asked whether the Governor can decide the matter after seeking opinion from the President, Mr. Parasaran said there is no bar on the Governor to refer the matter to the President. He said since the Governor is exercising his constitutional power, the bar imposed by the Supreme Court that foreign nationals cannot seek remission would not apply. Here the decision to be rendered by the Governor is based on the applications from convicts for pardon and not remission.
Differing with Mr Diwedi, senior advocate Aryama Sundaram said the power of pardon under Article 161 is a discretionary power, which can be exercised independently by the Governor. In exercising such a discretionary power, the Governor is not bound to accept the advice of the council of Ministers.
The fact that the Union Home Ministry had rejected the proposal to grant remission to the seven convicts under the statutory powers, will be a valid reason for the Governor to refer the matter to the President and seek his opinion in exercising his constitutional powers under Article 161.
Advocate Prabhu, who appeared for Perarivalan, is of the view that the Governor is bound by the advice of the Tamil Nadu Cabinet. He said the only ground available for the Governor to seek President's opinion is that he must be satisfied that Tamil nadu government had recommended the release of seven convicts for a ‘malafide’ reason.
In the light of the conflicting legal opinion, it remains to be seen whether the Tamil nadu Governor will act independently or would refer the matter to the President.
The Centre told the apex court that it did not concur with the Tamil Nadu government’s proposal to release the seven convicts in the case, saying remission of their sentence will set a “dangerous precedent” and have “international ramifications”. It said the case involved the assassination of a former Prime Minister in a brutal manner in pursuance of a “diabolical” plot carefully conceived and executed by a foreign terrorist organisation.
While dealing with Perarivalan’s plea for release, the CBI had said the role of Perarivalan in the conspiracy to kill Rajiv Gandhi was clearly established. It said the TADA court had noted that Perarivalan went to Jaffna in Sri Lanka during June 1990 along with Baby Subramanian to hatch the conspiracy.
Further his acquaintance with Murugan in Jaffna, his visit to Vellore Fort where LTTE cadres were lodged; removal of LTTE literature, pamphlets etc, established his active participation. The TADA court had categorically held that Perarivalan was neck deep in conspiracy with one-eyed Sivarasan and others and had actively assisted in bringing about the conspiracy to a successful completion.
The CBI said Perarivalan was an electronic engineer and he knew that to explode IED power source would be 9-volt battery, which was ultimately used in exploding the device (belt bomb). The claim of Perarivalan that he was innocent and was not aware of the conspiracy to kill Rajiv Gandhi could not be accepted.
