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Revisiting Constitutional and Statutory provisions (Article 72 and 161…
Revisiting Constitutional and Statutory provisions
Article 72 and 161
Events lead to assasination
Indian and SL PM sign accord in 1989
Assasination of Rajiv gandhi on 21st may, 1991
Recent developments
The Supreme Court observed last week
that the Governor shall be at liberty to decide on the remission application of
Perarivalan, one of the convicts, "as deemed fit. "
Convicts jailed for 27 years now
TN cabinet recommended to Governor that all seven life convicts be released under Art 161
Provisions under Article
Art 72
Power of President to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases
in all cases where the punishment or sentence
is by a court Martial in all cases where the punishment or sentence is by a court Martial matter to which the executive power of the
Union extends
in all cases where the sentence is a sentence
of death
Article 161
(same)
-But power extends until where the executive power of state extends
Earlier attempts
In 2014, an attempt was made under the
provisions of the Code of Criminal Procedure to remit life sentence to all 7 convicts
But, it was stayed by the Supreme Court. It
said that the Centre had primacy in according remission to life convicts, in case
that involves consultation between the Centre and the State
The Supreme Court said the expression
"consultation" ought to be read as"concurrence" and primacy must be accorded
to the opinion of the Central Government inmatters covered under clauses (a}, (b}, (c ) of
Section 435 (1) of Criminal Procedure Code
-This was in UNION OF INDIA
Vs V. SRIHARAN ALIAS MURUGAN IN 2015 case
Under Section 435 of the Criminal Procedure
Code, the State Govt. has to consult the Centrebefore releasing the prisoners, who were tried
by the Central Bureau of Investigation or undera Central Legislation.
What can Governor do now?
The Governor is much like the King of the
U.K .. He is a constitutional head, who hasto act not at his or her own discretion, but
on the advice of the Council of Ministers
This was declared by the seven-judge
Bench of the Supreme Court in ShamsherSingh Vs State of Punjab (1974).
In Maru Ram Vs Union of India (1980)
and Kehar Singh Vs Union of India
SC held that prez and Governor have to act on advice of council of Ministers and not at his/her own discretion
Thus, TN governor has no option but to release convicts
Scope for judicial review
If the Governor grants pardon, there is an
apprehension that his action may be struck down by court as Arbitrary
The above stance was held in Maru Ram's case and other subsequent judgements
As there is recommendation from state govt here, no question arises with regard to decision being arbitrary or malfide