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, says Article 161 of the Constitution. The sanctity of law and mandatory requirement of law cannot be allowed to be defeated by resort to rules of estoppel. In the exercise of the constitutional power under Article 161, the Governor has to abide by the recommendation of the Council of Ministers of the State.

The Tamil Nadu Governor, Banwarilal Purohit, like Governors in most States, has been remitting prison terms of people the political party in power wanted out without any let or hindrance. That of course was not the intention of the framers of our Constitution. Purohit’s latest act of letting prisoners go was the freeing of 13 convicts who had been sentenced to life imprisonment for the murder of six Dalits, including the panchayat president of Melavalavu in Madurai district. In view of the background of the prisoners, the Madras High Court directed them to stay away in Vellore district until a petition filed by the kith and kin of victims challenging the premature release of the convicts is disposed of.

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When it came to the release of seven life-term convicts in the Rajiv Gandhi assassination case of May 1991, under Article 161, the Governor showed his true colours. That the conviction of the seven and confirmation of their sentence is a miscarriage of justice has been confirmed by the same Supreme Court judge who presided over the Bench and the chief investigator of the Special Investigation Team of the CBI. Twenty-eight years have gone since the seven were incarcerated for a crime they had not committed. The Tamil Nadu Assembly has passed more than two unanimous resolutions demanding justice to the prisoners and their release.

The government of the late Chief Minister, J Jayalalitha, wanted the prisoners released in February 2014 and in March 2016. Unfortunately, she passed away before she could fulfil her mission. The Cabinet of Edappadi Palaniswamy, after obtaining expert legal opinion, passed a resolution more than a year ago recommending release of the seven under the Governor’s unfettered power under Article 161. Purohit is unwilling. AG Perarivalan, one of the seven who was still in his teens when the SIT picked him up for buying two nine-volt battery cells, approached the Supreme Court for relief. It ruled the Governor of Tamil Nadu “will be at liberty” to decide Perarivala’s application under Article 161 as deemed fit.

The SIT chief Devarayapuram Ramasamy Karthikeyan named Velupillai Prabhakaran, leader of the LTTE, as accused No. 1, Pottu Amman, intelligence chief as accused No. 2 and Akila, head of women’s intelligence wing of the LTTE, as accused No. 3 in the assassination case but made no effort to extradite them from Sri Lanka or any commando attempt to arrest them and stand trial. Dhanu, the human bomb who blew herself up died along with Gandhi and 16 others. Sivarasan, leader of the hit squad despatched by Prabhakaran, and his squad members were tracked down in a suburb of Bengaluru and gunned down by commandos flown in from Delhi.

That left Karthikeyan with nothing much to investigate. The conspiracy angle was entrusted to a Multi-Disciplinary Monitoring Agency to investigate. Nevertheless, Karthikeyan went on a fishing expedition and rounded up 41 people Siverasan befriended while on his dastardly mission, including a few Sri Lankan refugees in Tamil Nadu, produced them before a TADA court in Chennai, and got 26 of them sentenced to death. Two of them, Nalini and Perarivalan, were given double death sentences. Not a mean achievement. A Division Bench of the Supreme Court headed by Justice KT Thomas confirmed the death sentences of these two and another two, Murugan and Santhan Sri Lankan nationals.

Nalini’s death sentence has been commuted to life imprisonment on the recommendation of Sonia Gandhi. Rahul Gandhi and Priyanka have said they have no malice towards the convicts. Since the assassination of the former Prime Minister of India comes under the category of rarest of rare cases, the Supreme Court was constrained to uphold the death sentence of the four. It could have been any four of the 26 and would have made no difference to the case. Nalini’s ‘guilt’ lay in her association with the killer squad and accompanying them to the venue of the assassination in Sriperumbadur on that fateful night.

Murugan was a helper to the squad. Santhan’s was a case of mistaken identity. The SIT was looking for another Sri Lankan Tamil youth in Tamil Nadu by the same name. Though the trial against the 41 was held in a TADA court, they were not convicted under the Terrorism and Disruptive Activities (Prevention) Act, but under Indian Penal Code. Justice Thomas has admitted that he was not aware of the full facts while confirming the death sentence of the four. He said there were serious flaws in the SIT’s investigation which exposed “an unpardonable flaw in the Indian criminal justice system.”

V Thangarajan, IPS, who was then a SP in the team of Karthikeyan, had since confessed to wrongly recording the statement of Perarivalan which resulted in his conviction and double death sentence. Section 194 IPC says giving or fabricating false evidence with intent to obtain capital punishment is a serious offence punishable with imprisonment for life. Taking all these factors into consideration, the Tamil Nadu Cabinet recommended to Governor Purohit to release the seven prisoners. Markandey Katju, a former Chief Justice of the Madras High Court and former judge of the Supreme Court, says that in our parliamentary system of democracy which we have borrowed from the UK, the Governor is much like the King of England, a constitutional head who has to act not at his own discretion, but on the advice of the Council of Ministers.

This was the law laid down by the sevenjudge Bench of the Supreme Court in Shamsher Singh v State of Punjab (1974). It came even before the 42nd Constitutional Amendment which only confirmed what was earlier implicit in the Constitution. In two more decisions of the Constitution Bench ~ Maru Ram v Union of India (1980) and Kehar Singh v Union of India (1988) the Supreme Court held the power under Article 72 in the case of the President and Article 161 in the case of the Governor ~ meant he has to act on the advice of the Council of Ministers and not at his own discretion.

Why is Purohit sitting on the file put up by the Tamil Nadu Council of Ministers? Subramanian Swamy, who was a senior Cabinet minister in the Chandrasekhar government in Delhi at the time of the assassination, in his well-documented book, The Assassination of Rajiv Gandhi:Unanswered Questions and Unasked Queries, says the RSS had close working relationship with the LTTE in Rameshwaram, South Africa and London. At the time, the BJP had announced that it alone could give stability to the country since Rajiv Gandhi was no more.

Party stalwart Murli Manohar Joshi said on 26 May 1991, five days after the assassination, “tears are no substitute for stability.” The book says the RSS had shed no tears and saw “RG’s removal as a blessing in their climb to power.” If one were to map the statements and actions of Arjun Singh, a former Union minister in the Congress-led government, with the activities of the RSS, the author says, “there will emerge a remarkable synergy and unexplained coincidence.” We will have to wait for the Multi-Disciplinary Monitoring Agency (MDMA) to come out of its deep slumber and unravel the mystery behind the assassination of Rajiv Gandhi. Meanwhile, let not the unfortunate seven rot in Tamil Nadu jails indefinitely.

(The writer is a veteran journalist and former Director of The Statesman Print Journalism School)