The decision of the Tamil Nadu cabinet to recommend the release of seven life convicts involved in the Rajiv Gandhi assassination conspiracy has stoked a wide-ranging debate in the legal fraternity over the powers of pardon enjoyed by the State Governor.
A school of thought propounds that the Governor is bound by the ‘aid and advice’ of the Council of Ministers in respect of the powers of pardon enjoyed by him under Article 161 of the Constitution. It has also been stated that in addition to the cabinet resolution of the Tamil Nadu government, the State Assembly had passed a unanimous resolution calling for the release of the seven prisoners which meant that the Governor would have to take cognisance of the will of the people as well.
However, a contrary school of thought believes that the Governor has the right to exercise his own discretion independent of the advice by the Council of Ministers. While exercising his discretion, the Governor could take into account factors like the Union Home Ministry’s rejection of the request by the convicts for remission. It has therefore been stated that the Governor would be well within his rights to refer the matter to the President and seek his views thereon if he so wanted.
It should be noted that the Supreme Court, while rejecting a central government petition challenging the proposal of Tamil Nadu to release the convicts, had stated that the Governor would have the liberty to decide the question of release. The actions of the Governor will be closely watched in the coming days as he decides on whether to accede to the Tamil Nadu government’s wishes to release the seven convicts or not.
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