Legal implications of Governor's Remission to Rajiv's assassins

As you can see, The Dormant Lawyer has been luxuriating in inactivity, and proud of it too. But as you are aware, long-suffering reader, every once in a while something does catch TDL's eye, causing him to emit a snort and reach for the old laptop. The Tamil Nadu cabinet's recommendation to Governor Purohit to remit the life imprisonment of all the seven convicts in Rajiv Gandhi's assassination case to time already served is one such snort-inducing laptop-reaching eye-catcher.

First of all, for the billions of non-lawyer readers of this prolific blog: remission is the reduction of the amount of punishment without changing the character of the punishment (as contrasted with the other powers granted in Art. 161 to the Governor, viz. reprieve - temporary suspension of sentence; respite - postponement of the execution of the sentence; and commutation - changing a punishment to one of a different sort than that originally proposed, e.g. rigorous imprisonment to simple imprisonment etc. These are all, of course, less efficacious than a pardon, which "not only removes the punishment but, in contemplation of law, places the offender in the same position as if he had never committed the offence.")

Now to the reason why this routine political matter has so stirred the normally unflappable, sloth-like TDL. 

It has been a while, but assuming my memory serves me, Art. 161 restricts the Governor's pardoning powers to matters to which the executive power of the State extends. Yes, here we are: "The Governor of a State shall have the power to grant... remissions of punishment.. of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends." Why is that relevant, you ask? Isn't the Indian Penal Code, under which the conspirators were tried, come under the "law and order" item of the State List, you contend?

It has been an even longer while, but assuming my memory doesn't deceive me, these individuals were tried under various other central Acts as well, including the The Passport Act, The Foreigners Act, The Wireless Telegraphy Act among others, and the Governor's power does not extend to any of these.

In fact, as recently as 27th April 2018, the Madras High Court, in a related matter, had held that the Governor could not consider the representation for premature release made by S. Nalini, the prime conspirator out of these seven, for that very same reason. To quote from the judgment delivered by K.K. Sasidharan, J., in that matter:

In view of the stand taken by the State Government that the conviction of the appellant was also for the offences under various Central enactments, and not only in respect of laws with reference to which the legislature of the State has power to make laws and in view of the pendency of the substantial Writ Petition before the Hon'ble Supreme Court, we are not in a position to direct the Governor to consider the representation by exercising the power under Article 161 of the Constitution.

(S. Nalini v. State of Tamil Nadu, W.A. No. 1619 of 2016)

It would seem that just on this legal ground, the matter should founder before the Governor. Not that that has caused the State government to pause.

If, somehow, the Governor is convinced he has the power in this matter to remit the sentences of each of these seven, it must be considered whether he is bound by the advice of his cabinet. Constitutional convention and Art. 165 would suggest so, and indeed, the Supreme Court has ruled on this issue on several occasions, the most recent being this obiter by a Constitution Bench:

It is also necessary to appreciate, that in the discharge of executive functions, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute sentences (under Article 161). The Governor’s power under Article 161, is undisputedly exercised on the aid and advice of the Chief Minister and his Council of Ministers.

(Jagdish Singh Khehar, J., in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh State Assembly & Others, 13th July 2016, JT 2016 (7) SC 64)

That, of course, leads us to President Pranab Mukherjee ignoring the recommendation of the Union Home Ministry back in January 2017, a matter that TDL has dealt with at length here followed by here and here. So let's quickly move past that..

We then come to the hypothetical scenario where the Governor of Tamil Nadu remits the sentence of the seven convicts. The Congress has come out in opposition to the proposal, so let us assume that there is indeed an interested party which would seek a remedy against the Governor's remission order. Who would that interested party be? Normally, the victim's next of kin takes up this cause. (One should hesitate to use "Normally" here, but unfortunately there have been far too many instances of the misuse of this gubernatorial power). But in this case, Sonia, Priyanka and Rahul have apparently "forgiven" the convicts. 

Now, in TDL's opinion, the said act of "forgiveness" cannot be legally binding, and will not preclude them from petitioning the court against the Governor's order. There is also the prospect that the act of forgiveness might have been as political a manoeuvre as the remission recommendation (go ahead, call TDL a cynic). Either way, in an enlightened, modern, democratic society built on the concept of the rule of law, victims and victim's kin have as much right to forgive as they have to avenge, viz. none. A crime is an offence committed against the society at large, and the assassination of a former as well as aspiring Prime Minister is an offence against the entire nation, and forgiveness by the PM's kin needn't enter the picture, whether it was heartfelt or vote-felt. 

Further, let's not forget the other victims of the suicide-bomber; apart from her and her target, 14 others lost their lives, and scores more were injured. They and their kin will have a cause of action, no matter what those who survive Rajiv choose to do.

Finally, should a remedy against the Governor's order be available at all? Isn't the Governor exercising a sovereign's prerogative after all? Fortunately, the law on this is settled as well, especially by the Supreme Court on 1st May 2000:

There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do[es] not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration. 

(G. B. Pattanaik, J., in Satpal v. State of Haryana, (2000) 5 SCC 170)

Let's look at those wise words again: the said power, being a constitutional power, is amenable to judicial review on certain limited grounds, including if the Governor has passed the order without application of mind, or on some extraneous consideration.

The extraneous consideration is rather obvious here. TDL submits that lack of application of mind is also in the offing. The petitioner(s) seeking to overturn the Governor's hypothetical remission order could contend that a blanket remission of all seven convicts would not have been ordered if application of mind had taken place. Surely each convict's case is different. Nalini, for example, had originally been sentenced to death by the trial court but her sentence had not been confirmed by the Supreme Court, after she had given birth to a daughter in prison. Her husband V. Sriharan alias Murugan and two others (T. Sudhendraraja alias Santhan and A. G. Perarivalan) also had their death sentences commuted to life imprisonment by the Supreme Court on grounds of inordinate delay, a decision much praised by the local media. 

His Excellency Banwarilal Purohit has a knotty problem on hand, and TDL is looking on in interest. More on this, fair reader, if it develops in the legal arena. Unfortunately it will probably proceed in the political sphere and dormancy will resume...