In Charles Dickens’s A Tale of Two Cities, Dr Manette was a prisoner in the Bastille for 18 years, during which he even forgot his name, and from a doctor turned into a shoemaker. Surely the seven convicts in the Rajiv Gandhi assassination case have suffered enough, having been in jail for 27 years. As Portia said in her famous speech in Shakespeare’s The Merchant of Venice, justice should be tempered with mercy.
Moreover, in another constitution bench decision in Kehar Singh vs Union of India, the Supreme Court has held that while exercising his power of pardon, the governor can scrutinise the evidence recorded by the court, and on the same evidence come to a different conclusion regarding the guilt of the accused and sentence imposed on him/her. In this decision, the Supreme Court has again reiterated what was said in the Maru Ram case, namely, that the governor is bound by the advice of the council of ministers.
As regards the judgment of the constitution bench in Union of India vs V. Sriharan@Murugan, that judgment only relates to the statutory power of the state government to grant remission. Section 435(1) of the Code of Criminal Procedure says that if an offence has been investigated by the Central Bureau of Investigation, then the state government must consult the Centre before exercising the power of remission, and the Supreme Court held that consultation means concurrence. However, this judgment has nothing to do with the constitutional power of the governor under Article 161 of the constitution.
Thus, there are at least three constitution bench decisions of the Supreme Court, as mentioned above, which have held that the governor must act on the advice of the council of ministers. The seven convicts must, therefore, be released.
Markandey Katju is a former judge of the Supreme Court.
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