Following the order of the Supreme Court in the mercy petition by A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case, the Tamil Nadu government has recommended to the Governor to pardon and release all the seven.
Some people have doubted whether these convicts will be released even after the State government’s recommendation; I believe that the Governor has no option but to act in accordance with the State government’s recommendation and release them.
In our system of parliamentary democracy, which we have borrowed from the U.K., the Governor is much like the King of the U.K., a constitutional head who has to act not at his or her own discretion, but on the advice of the Council of Ministers. This was the law declared by the seven-judge Bench of the Supreme Court in Shamsher Singh v. State of Punjab (1974), which came even before the 42nd Constitution Amendment which only expressed what was earlier implicit in the Constitution.
Following this decision, in two more decisions of the Constitution Bench — Maru Ram v. Union of India (1980) and Kehar Singh v. Union of India (1988) — the Supreme Court held that in exercising the power under Article 72 (the power of the President to grant pardons, and to suspend, remit or commute sentences in certain cases) or Article 161 (the power of the Governor to do the same) of the Constitution, the President or the Governor has to act on the advice of the Council of Ministers and not at his or her own discretion. Thus, the Governor of Tamil Nadu has no option but to release the seven convicts.
Those who doubt that the seven convicts can still be released after the Tamil Nadu government’s recommendation have two apprehensions, but both are unfounded. The first apprehension is on the basis of the Supreme Court judgment in Union of India v. V. Sriharan alias Murugan (2015). A careful perusal of this decision shows that it only relates to the statutory power of the State government under the Code of Criminal Procedure (CrPC) and has nothing to do with the constitutional power of the Governor under Article 161 of the Constitution. What the judgment notes is the requirement in Section 435(1) of the CrPC of consulting the Central government when the State government wishes to grant remission of a sentence in a case which had been investigated by the Central Bureau of Investigation. The court held that the word “consultation” in Section 435(1) must be interpreted to mean “concurrence”. But the constitutional power to grant pardon in Article 161 is different from the statutory power under the CrPC. Hence, the aforementioned decision does not come in the way of the Governor granting pardon, without the concurrence of the Central government.
The second apprehension is that if the Governor grants pardon, his action may be struck down by the court as arbitrary. No doubt it has been held in Maru Ram’s case and other subsequent judgments of the Supreme Court that the Governor’s act of granting pardon is subject to judicial review and can be struck down if it is arbitrary or mala fide. But can it be said that if the Tamil Nadu Governor grants pardon to the seven convicts on the basis of the recommendation of the State government, he will be acting in an arbitrary or mala fide manner? The answer is clearly in the negative. In Maru Ram , the Supreme Court had observed that the “considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean”. Among such myriad considerations can surely be that the convicts have spent 27 years in jail and have suffered enough. As Portia said in Shakespeare’s Merchant of Venice , justice should be tempered with mercy. The Governor must now act quickly and pardon and release the seven convicts without any ado.
Markandey Katju is a former Judge of the Supreme Court of India