Rajiv Gandhi’s killers: To release or not, here are the Governor’s options

New Delhi, Sep 11: The decision by the Tamil Nadu to release the seven convicts in the Rajiv Gandhi assassination case may not be legally viable say experts.

The AIADMK government in Tamil Nadu Sunday decided to recommend to the state Governor Banwarilal Purohit, the release of all seven life convicts in the Rajiv Gandhi assassination case.

A resolution to this effect was adopted at the state cabinet which met here under Chief Minister K Palaniswami's leadership, Fisheries Minister D Jayakumar told reporters.

It decided to recommend to Governor Purohit, the release of Murugan, Santhan, Perarivalan, Jayakumar, Ravichandran, Robert Payas and Nalini, serving life imprisonment.

Though the Supreme Court had asked the Governor to consider the plea of only Perarivalan, the Cabinet decided to recommending setting all others free, as they had sought a premature release.

Options before the Governor:

If he decides to adopt Article 161, then he would take forever to take a decision. The remission was sought under Article 161, but the same does not prescribe any time limit for a decision to be made.
The second option is to reject the plea. This would lead to another round of legal battle as the stake holders are most likely to go to court.

The third option is to return it to the Cabinet for fresh consideration.

Power to pardon:

Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 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.
However unlike the President, the Governor of a state can grant pardon only in those cases which are related to the state's and not the Central law. The governor can reduce the sentence or can grant pardon, provided the offence is under the state law.

The Governor would not have the power if the offender is awarded death penalty, whether both under the state or central law. In the case of a capital punishment the power to pardon lies only with the President of India.

The Special Remission to Prisoners:

In January the Union Cabinet had approved to grant Special Remission to Prisoners as part of the commemoration of the 150th birth anniversary of Mahatma Gandhi.

As part of commemoration of 150th Birth Anniversary of Mahatma Gandhi, the following categories of prisoners will be considered for special remission and released in three phases. In Phase-l, the prisoners will be released on 2nd October, 2018 (Birth Anniversary of Mahatma Gandhi), in Phase-ll prisoners will be released on 10th April, 2019 (Anniversary of Champaran Satyagrah) and in Phase-Ill, prisoners will be released on 2nd October 2019 (Birth Anniversary of Mahatma Gandhi):-

(a) Women convicts of 55 years of age and above, who have completed 50% of their actual sentence period.

(b) Transgender convicts of 55 years of age and above, who have completed 50% of their actual sentence period.

(c) Male convicts of 60 years of age and above, who have completed 50% of their actual sentence period.

(d) Physically challenged/disabled convicts with 70% disability and more who have completed 50% of their actual sentence period.

(e) Terminally ill convicts.

(f) Convicted prisoners who have completed two-third (66%) of their actual sentence period.

Special remission will not be given to prisoners who have been convicted for an offence for which the sentence is sentence of death or where death sentence has been commuted to life imprisonment; Cases of convicts involved in serious and heinous crimes like Dowry death, Rape, Human Trafficking and convicted under POTA, UAPA, TADA, FICN, POCSO Act, Money Laundering, FEMA, NDPS, Prevention of Corruption Act, etc.

Ministry of Home Affairs will issue advice to all States and UTs asking them to process the cases of eligible prisoners. State Governments and UT Administrations will be advised to constitute a Committee to examine the cases. State Governments will place the recommendations of the Committee before Governor for consideration and approval under Article 161 of the Constitution. After the approval, the prisoners will be released on 2nd October 2018, 10f/l April, 2019 and 2nd October, 2019.