Clemency question: The Rajiv Gandhi assassination case

After failing to get the seven convicts in the Rajiv Gandhi assassination case released by exercising its statutory power to remit life sentences, the AIADMK government in Tamil Nadu has taken recourse to a possible constitutional remedy. It has decided to invoke the Governor’s clemency power under Article 161 of the Constitution. The earlier attempt in 2014 to remit the sentences under the provisions of the Code of Criminal Procedure was stayed by the Supreme Court, which ultimately held that the Centre had primacy in according remission to life convicts in a case that involves consultation between the Centre and the State.

In 2014, the Tamil Nadu government tried to invoke its remission powers under Section 432 of the Code of Criminal Procedure to release the convicts. The Centre opposed the move, arguing that since the case had been prosecuted by the Central Bureau of Investigation, the state first needed to take the Centre’s “concurrence” as required by Section 435 of the code.

The dispute went to the Supreme Court, which decided in the Centre’s favor in 2015, ruling that the word “consultation” in Section 435 in spirit meant “concurrence”. In August this year, the Centre denied concurrence to Tamil Nadu on the grounds that releasing the people convicted of assassinating a former prime minister would have “international ramifications” for India.

Tamil Nadu Governor will now have to take a call on the advice of the State’s Council of Ministers and decide whether he is bound by it. He can either reject the proposal or seek its reconsideration. In either case, he will be mindful of the fact that his decision will be subject to judicial review.

It is settled in law that except in matters where the governor has discretion or enjoys independent powers, they are bound by the Cabinet’s decision. Governor does not have the option of returning a decision for reconsideration either since the Indian Constitution provides that recourse only for the President. However, governor’s decision, even if made on the aid and advice of the Cabinet, is subject to judicial review. Further, Supreme Court rulings on how the governor should make decisions under Article 161 add to the complexity of the present case.

In two separate judgments, the apex court has reiterated that governor’s power to pardon cannot be used mechanically. In Epuru Sudhakar, which involved a Congress leader in Andhra Pradesh, the court ruled that political considerations cannot be the basis for granting pardon, and set aside the governor’s clemency order.

Options before the governor:

One, he can sit on the cabinet recommendation endlessly, as Article 161 of the Constitution does not prescribe any time limit for him to take a decision on the cabinet resolution.

Two, he can return the resolution to the cabinet for clarification or reconsideration.

Third, he can reject the resolution prompting the stakeholders to take the issue to courts, where it will be a time-consuming process.

Since state’s executive power extends to all laws on the concurrent list, including the Indian Penal Code and the Criminal Procedure Code, the governor has the power to remit sentences handed down under such laws. In the particular matter of Rajiv Gandhi’s assassins, though, the point of concurrence was insisted upon as the case had been investigated by a central agency.

But given that the exercise of governor’s power under Article 161 is constitutional, it does not require the Centre’s concurrence. The aid and advice of the state Cabinet are enough.

There is a possibility that the Centre will challenge the governor’s order if he accepts the state Cabinet’s advice, not least because it will cause several legal and diplomatic complications. Since three of the convicts are Sri Lankan nationals, what will be their legal status after they are released? Will the Indian government be willing to let foreign nationals convicted of assassinating a former prime minister live in the country? Will it deport them to Sri Lanka, where they are bound to be arrested again? If they propose to move to another country, can India be expected to facilitate such a move?

An omnibus order of release clearly will not address the particularities in each case, or evaluate the gravity of their role in the crime and the effect on society of releasing them.

Moral issues: In principle, the idea that convicts who have suffered prolonged incarceration require compassion cannot be faulted. The idea of locking away a person for life, without so much as a sliver of hope of freedom, is not in keeping with the ideals of a truly modern society.

What should not be ignored? It is impossible to ignore the impact of such a decision on capital punishment. When lifelong imprisonment is regarded as a humane alternative to capital punishment, releasing life convicts may only strengthen the demand for the imposition of the death penalty — which would be retrograde. Although there are many political considerations behind the move to release the convicts, this case must be decided on the basis of legal principles alone.

What do you need to know? Article 161:

Article 161 deals with Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases.

It states 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 offense against any law relating to a matter to which the executive power of the State extends.


The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways:

The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.

The President can grant a pardon in all cases where the sentence has given a sentence of death but pardoning power of Governor does not extend to death sentence cases.

Significance of pardoning powers:

The pardoning power of Executive is very significant as it corrects the errors of the judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence.

Pardon may substantially help in saving an innocent person from being punished due to the miscarriage of justice or in cases of doubtful conviction.

The object of pardoning power is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections.

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