The Union government moving the Supreme Court seeking a review of its November 11 order releasing all six remaining convicts undergoing life imprisonment for the assassination of former Prime Minister Rajiv Gandhi is sure to spark serious discussions on certain constitutional and administrative topics.
The apex court has made use of two constitutional provisions while ordering the release of all the seven convicts. One is Article 161, which says 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. Since the governor acts on the aid and advice of the council of ministers, the court has cited the September 9, 2018, decision of the Tamil Nadu Cabinet to grant pardon to all the convicts who were serving their sentence then. The court also invoked its rarely used plenary power under Article 142 which empowers it to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”.
The court also cited the good character of the convicts during their long duration of their sentence, the academic pursuits they made and the earlier decision of the apex court to release A.G. Perarivalan, the youth who had not participated directly in the assassination, under similar provisions.
The Union government’s primary contention that it was not heard before the court decided the case which is about the assassination of a former Prime Minister of the country. It has said the petitioners did not implead the Union of India as a party and it is a procedural lapse.
The most important of the contentions is that four of the six convicts who have been granted remission are Sri Lankan nationals. Granting remission to a terrorist of foreign nation, who was duly convicted in accordance with the law of the land for assassinating the former Prime Minister, is a matter which has international ramifications and, therefore, falls squarely within the sovereign powers of the Union of India, it has said.
The Supreme Court had disapproved of the action of the Tamil Nadu governor forwarding to the President the recommendation of the state council of ministers to pardon Perarivalan. It found no reason nor the source of the governor’s power backed by the Constitution to refer a recommendation made by the state Cabinet to the President, and termed his action as “contrary to the constitutional scheme”.
The Constitution has clearly defined the governor’s power to grant remission, and it makes no qualification of the nature of the crime, nor of the beneficiary. The Union government, on the other hand, wants it to be heard given the particular circumstances in the case: one is the terror angle to the crime and, second, the nationality of the perpetrator/beneficiary. The positions are clearly contradictory, and hence the apex court needs to be open, and at the same time very circumspect, while dealing with the powers of the Union and states as determined by a Constitution which is federal in nature....