Can Governor's delay in ordering release of Rajiv Gandhi convicts be challenged?

Past track records of such mercy petitions made to the President and Governors of the States under Articles 72 and 161 of the Constitution have revealed that this power has never been exercised properly in a timely and humane manner. In fact, the death sentence of at least four of the accused in the present case was reduced to life by the Supreme Court owing to the ‘exceptional delay’ in considering their mercy petitions.

For now, this is the second time that the Tamil Nadu government has set in motion the process of releasing the seven accused. In the first instance the late J Jayalalithaa, the then Chief Minister, had attempted to release them using statutory power of the State Government under Section 435 (1) of the Code of Criminal Procedure (CrPC).

However, the Supreme Court struck it down on the basis that as per the said section if the State Government wishes to grant remission of a sentence investigated by the CBI then the Centre ought to be consulted. It also had held that the word ‘consultation’ in Section 435(1) must be interpreted to mean ‘concurrence’.

However, this time around it is as per the Constitutional power under Article 161 of the Constitution, where the concurrence of the Centre cannot come in the way of the Governor granting pardon. For that matter, the Governor has no option but to act in accordance with the State government’s recommendation.

Advocate M Radhakrishnan, who appears for Nalini, a convict in the case, said, “The Governor is expected to act fairly and swiftly in the matter of life convicts under Article 161 of the Constitution. If the Governor intends to disagree with the advice of the Council of Ministers of Tamil Nadu or any other State, such a Governor has no option but to resign. If a Governor refuses to give his assent to the decision of the council of minister of the State, such a decision is not only violative of the basic structure of the Constitution but is also challengeable under Article 226 of the Constitution before the concerned High Court or under Article 32 of the Constitution before the Supreme Court.”

Past experiences have revealed that exercising the sovereign power under Article 161 of the Constitution can be questioned only when the life convicts are released before the completion of 14 years of imprisonment. 

Moreover, a Governor is at liberty to seek clarification from the State or return the decision of the State without expressing his opinion. However, once the State reiterates its decision, the Governor has no choice but to give his assent to the State especially a decision under Article 161 of the Constitution.

Under such circumstances, legal experts note that the failure of the Governor to give consent to the cabinet’s decision under Article 161 of the Constitution can even be termed as the failure of the Constitutional machinery itself. 

Otherwise the decision under Article 161 of the Constitution is ‘untouchable’ by the court as held by a Constitutional bench of the Supreme Court in December 2015.

However, the crucial question, which is yet to be decided, is whether the delay by the Governor in taking a decision or giving his assent to the decision of Tamil Nadu cabinet can be challenged either at the High Court or the Supreme Court.

Acknowledging this, Senior Counsel P Wilson, said “Since the President and Governor are expected to act only on the advice of the council of ministers and scope of judicial review is possible only within the relevant parameters, any delay by the Governor in dealing with the mercy petitions can be challenged.”

Stressing on this further, Advocate Radhakrishnan said, “Once the Supreme Court or High Court has the power of judicial review over the decision of the President under Article 72 of the Constitution and of the Governor under Article 161 of the Constitution, the High Court or the Supreme Court can give appropriate directions to the Governor or the President and fix a time limit in the interest of justice.”

“If the Governor does not give his assent to the Council of ministers resolution to release the seven convicts, Nalini may approach the High Court under Article 226 of  the Constitution for fixing time limit for the Governor to act under Article 161 of the Constitution,” he added.