The Tamil Nadu Cabinet today recommended to the Governor to release seven convicts in the Rajiv Gandhi assassination case.
The seven have been in jail for the past 27 years since the assassination on May 21, 1991.
The special TADA court in Chennai sentenced all 28 accused to death.The Supreme Court confirmed death for four--- Nalini, Murugan, Santhan and Perarivalan --- and commuted the sentence of three others to life.The remaining were convicted for lesser offences and were released after setting of the period they had already spent in jail against their sentences.
Nalini was the first to get a reprieve on the intervention of Sonia Gandhi.The Governor commuted her sentence as she was then pregnant. Sonia did not want Nalini' s child to be orphaned as her husband was also facing the gallows.
On Feb 28, 2014, the Supreme Court commuted the death sentences of Murugan, Santhan and Perarivalan on the ground of inordinate delay on the part of the President in deciding in their clemency petition.
The very next day, the then Chief Minister J Jayalalitha announced her government's decision and sought the Centre's concurrence as the case had been investigated by the CBI, a Central agency.
The same year, the UPA Government filed a petition in the Supreme Court against Tamil Nadu's move to release all seven.
A Constitution bench in December 2015 also held that the Tamil Nadu Government cannot release the convicts without the concurrence of the Centre
However, the same bench said that ruling on the executive exercising its statutory power to remit sentences will not affect the power of the President under Art 72 and Governor under Art 161 are untouched.
It was on that basis a three-judge on Sept 6 asked the Tamil Nadu Governor to consider Perarivalan's mercy petition under Art 161.
As all seven were impleaded in the case, the Cabinet has decided to recommend the release of all of them.
Opinion is divided on options before Governor. Former Tamil Nadu advocate- General K Subramaniam says the Governor will surely consult the Union Home and Law Ministries as well as Attorney- General.
Senior advocate M Duraiswamy says the Governor is bound to act on the advice of the Cabinet in as much as the President rejected the proposal to release the convicts on the basis of the Union Home Ministry's recommendation.
He also says that the Governor's clemency power is no less than that of the President. Therefore, the Governor is not bound by the President' s rejection of the government proposal to release the seven.
However, the Governor can delay a decision in the name of holding legal consultation.