The Tamil Nadu government has maintained over the last two years that it resolutely stands behind former Chief J Jayalalithaa's decision to release seven prisoners convicted in the Rajiv Gandhi assassination case. And on Sunday, days after the Supreme Court directed Governor Banwarilal Purohit to take a decision regarding their imprisonment , the cabinet led by Chief Minister Edappadi Palaniswami recommended that the constitutional head allow their release.
The central government in the past has made it abundantly clear that it is against the release of the convicts - Murugan, Santhan, Robert Payas, Nalini, Ravichandran, Jayakumar and Perarivalan. It maintained that remission of their sentence will set a 'dangerous precedent' and have 'international ramifications'. But legal and constitution experts tell TNM that their release is imminent and that Governor is left with no choice.
"Governor Purohit's hands are tied," says senior advocate and human rights activist Sudha Ramalingam. "The matter has been presented under Article 161 which allows the Governor to suspend sentences. His decision can only be based on the recommendations of the cabinet. At the most, he can seek clarification or tell the state government to reconsider the matter. But if the government sticks to its stand, the Governor does not have the power to object to their release," she adds.
The advocate points out that these prisoners should have freed much earlier and that if it were any other victim, mercy would have been granted much earlier.
"The person assassinated is a VVIP which is why justice has been delayed for this long," she opines. "Now, the constitution dictates that the Governor follow the recommendations of the cabinet. There are no legal hurdles," she adds.
According to retired Madras High Court Judge D Hariparanthaman, the one option the Governor does have is it to delay his decision.
"Once the cabinet takes a decision on the mercy petition, a constitutional head has no power to reject it. He cannot consult the Centre or even the President. But what he can do, is delay the decision, even for three months. Even former President Abdul Kalam delayed taking any kind of a decision on their mercy petition to commute death sentences to life imprisonment. But he finally has to take a decision, irrespective of the delay," explains the retired judge.
In the past, when a constitutional head went against the wishes of the cabinet, the matter has been taken to court.
"In 1999, when then Tamil Nadu Governor Fathima Beevi rejected the mercy petitions of four of the convicts in the Rajiv Gandhi Assassination case without consulting the council of ministers, the Madras High Court dismissed her decision. They made it clear that the cabinet has to take the call and recommend it to the Governor," explains the former judge. "There is precedent in Tamil Nadu in such a case already and the court's orders will have to be followed."
For Nalini's counsel, this wait for the Governor's signature is the final lap in a battle that has stretched over 22 years.
"If Jayalalithaa had wanted she could have ensured their release much earlier by invoking Article 161. But she used Section 434 of the CrPC which required the Centre's permission for the release as well. That has led to further delay. However now, the Governor has to act on the cabinet's recommendation and they can be released as early as tomorrow," explains advocate Radhakrishnan, Nalini's counsel. "He may have personal differences over the matter but the cabinet's decision is binding," he adds.