DAILY NEWS ANALYSIS

GS-II : Governance Federal issues

09 February, 2021
5 Min Read

Issue of Tamil Nadu Governor under Article 161

Context

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.

View of the Supreme Court

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.

Article 161 in The Constitution Of India 1949

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

Limitation of A.161

The only limitation in Article 161 is that it should relate to “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”.

Details

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 (A.72 and A.161).
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.

Conflict between the State cabinet and the Governor

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.

Centre’s dimension of ‘Zero tolerance’ toward crime

One could speculate that the delay reflected the Centre’s concern about releasing those involved in the plot to assassinate a former Prime Minister and its ramifications for its policy of ‘zero tolerance towards terror.

Humanitarian dimension

The Court should settle this. The convicts’ continuing incarceration for nearly 30 years, notwithstanding the gravity of their crime, has acquired a humanitarian dimension for many.

Way forward

It is vital that law and compassion, rather than politics and electoral considerations, form the basis for any decision on their release.

Source: TH

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