Tamil Nadu Govt’s letter to Centre on release of Rajiv Gandhi convicts, a political masterstroke

The letter sent by the Tamil Nadu Government’s Chief Secretary to the Secretary, Union Ministry of Home Affairs on 2 March seeking the latter’s views on the release of seven convicts in the Rajiv Gandhi assassination case is considered a political masterstroke by the Tamil Nadu chief minister, J Jayalalithaa on the eve of the state assembly elections.Analysts point out that there were two options before the state Government, after the Supreme Court’s judgment in the Sriharan vs Union of India, delivered on 2 December last year. In this judgment, the Constitution bench of the court had held that the state Government cannot release convicts under Section 435 Cr.P.C., without consulting the Centre, if the crimes for which they were convicted and sentenced were investigated by a federal investigating agency, like the CBI.More important, it was also held in that judgment that consultation means concurrence of the Central Government, whose views will be binding on the state Government.While disposing of the matter, however, the five-Judge bench had directed that writ petition No.48 of 2014 be posted before a three Judges bench of the Supreme Court for hearing. This writ petition was filed by the Central Government against the Tamil Nadu Government, when the latter, in a similar letter, sought the Centre’s views on the release of these seven convicts in 2014. The Centre secured a stay, and subsequently, the five-judge bench, on a referral by the three-Judge bench, considered and answered seven Constitutional and legal questions which arose in this case.The optionsThe two options available to the Tamil Nadu Government, after the December 2, 2015 SC judgment, were either1) to await the Centre’s reply to the 2014 letter, action on which was stayed by the Supreme Court, and which is now before the yet-to-be-constituted three judge bench of the Supreme Court, and thus await the outcome of this case or2) to go ahead with exercising its powers under Article 161 of the Constitution by advising the state Governor to accept the fresh mercy petitions submitted by the seven convicts for remission.The Tamil Nadu Government, however, found that it has a third option, which was not envisaged by the December 2, 2015 judgment, that is, to create a fresh cause of action, by sending a fresh letter to the Centre under S.435 Cr.P.C.The Union Home Minister, Rajnath Singh, has told Parliament on 3 March that the Centre would go by Supreme Court ruling. This has given rise to speculation whether as per the Court’s ruling, the Centre has no option but to disagree with the State Government on release.Although both the UPA and its successor NDA Governments took a similar stand and opposed the Tamil Nadu Government’s decision to release the convicts before the Supreme Court, there is nothing to prevent the Centre to review its decision afresh, and reply to the state Government, either expressing its agreement or disagreement.It is now open to a three-Judge bench to consider and decide the same writ petition in the light of the Constitution bench judgment dated 2 December 2015. This three-judge bench has not yet been constituted by the Chief Justice of India.Meanwhile, the state Government has claimed that it has received fresh petitions from the convicts and their families that following the 2 December 2015 judgment, the door is open to the Tamil Nadu Government to initiate a consideration of convicts’ mercy petitions by the state Governor afresh under Article 161 of the Constitution of India, for which the consultation with the Central Government is not required.The state Government, instead of taking action under Article 161, however, has once again invoked its powers under Section 435 Cr.P.C., knowing fully well that the Centre is likely to disagree with its decision to release these seven convicts, after having opposed it in the Supreme Court.Analysts, therefore, suggest that the state Government’s action can be explained as follows:A. The previous UPA Government, instead of replying to the state Government in 2014, sought to challenge it under Article 32 in the Supreme Court. The Central Government, now led by the NDA, cannot run to the Supreme Court again on the same issue, and therefore, has to answer the state Government’s letter, by either agreeing or disagreeing with the latter’s decision to release the seven convicts.B. Once the Centre formally disagrees with the state Government’s decision to invoke Section 435 Cr.P.C. to release the seven convicts, the state Government will be free to use Article 161 of the Constitution, which it considers, as the final remedy available to it, even in terms of the Supreme Court’s judgment of 2 December 2015.C. The state Government chose to be silent on whether it can use Article 161 so far, because it wants to exhaust all the existing remedies available to it, before using the final remedy. D. Once the Centre makes its disagreement with the Tamil Nadu Government on the release of the convicts...

Tamil Nadu Govt’s letter to Centre on release of Rajiv Gandhi convicts, a political masterstroke

LiveLaw Research Team

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