The Supreme Court made use of two constitutional provisions while ordering the release of the seven convicts
The Union government asking the Supreme Court to seek review of its November 11 order releasing the six remaining convicts sentenced to life imprisonment for the assassination of former Prime Minister Rajiv Gandhi is sure to spark serious discussions on certain constitutional and administrative matters.
The Supreme Court made use of two constitutional provisions while ordering the release of the seven convicts. One is Section 161, which provides that the governor of a state has the power to grant pardons, reprieves, reprieves, or remissions of sentence or to suspend, remit, or commute the sentence of any person convicted of an offense under any law relating to a matter to which the executive power of the state extends. Since the Governor acts with the help and advice of the Cabinet, the court cited the September 9, 2018 decision of the Tamil Nadu Cabinet to grant pardons to all convicts who were then serving their sentences. The court also invoked its rarely used plenary power under section 142 which empowers it to “make such decree or order necessary to do complete justice in any cause or matter pending before it”.
The court also cited the good character of the convicts during the long term of their sentence, the academic pursuits they carried out and the Supreme Court’s earlier decision to release AG Perarivalan, the youth who had not directly participated in the assassination, under similar provisions. .
The main claim of the Union government that he was not heard before the court decides the case which concerns the assassination of a former Prime Minister of the country. He stated that the petitioners did not implicate the Indian Union as a party and that this was a procedural error.
The most important of the claims is that four of the six convicts who have been granted reduced sentences are Sri Lankan nationals. Granting pardon to a terrorist from a foreign nation, who has been duly convicted according to the law of the land for having assassinated the former Prime Minister, is a matter which has international ramifications and, therefore, falls squarely within sovereign powers of the Indian Union, he said.
The Supreme Court had disapproved of the action of the Governor of Tamil Nadu conveying to the President the recommendation of the Council of State Ministers to pardon Perarivalan. He found no reason or source for the Governor’s power, backed by the Constitution, to refer a recommendation made by the State Cabinet to the President, and called his action “contrary to constitutional rule.”
The Constitution has clearly defined the governor’s power to grant remission, and it places no restrictions on the nature of the crime, or the recipient. The Union government, on the other hand, wants it to be heard given the particular circumstances of the case: one is the terrorist angle of the crime and, secondly, the nationality of the perpetrator/ beneficiary. The positions are clearly contradictory, and therefore the Supreme Court must be open, and at the same time very circumspect, while dealing with Union and State powers as determined by a Federal Constitution.
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