Passing the buck on the fate of Rajiv Gandhi killing case convicts

Can a high constitutional authority — even the President of India — exercise a power not vested with him in the first place? No.
So won’t the office of the First Citizen be stumped by a letter from Tamil Nadu chief minister M K Stalin, requesting the President to remit the sentence of the seven life convicts in the Rajiv Gandhi assassination case and order their ‘immediate release’?

Stalin’s May 20 letter was the second dig on the President’s office to invoke a non-existent power vis-a-vis the release
of the seven convicts. The first one was by Tamil Nadu governor Banwarilal Purohit, who had concluded that the President was the ‘competent authority’ and hence ‘referred’ a state cabinet resolution on the issue to him.
It was on September 9, 2018 that Tamil Nadu government invoked its sovereign power under Article 161 of the Constitution and recommended the governor to release the convicts. After more than 29 months, Purohit ‘referred’ the issue to the President on February 4, 2021. How can the President take a decision when no petition is filed directly before him, and when there is no Union cabinet recommendation in that regard?
A brief antecedent analysis of the seven convicts is in order here. Former prime minister Rajiv Gandhi was assassinated at Sriperumpudur near Chennai on May 21, 1991. Shortly afterwards, 26 were arrested and tried under the now-repealed Terrorism and Disruptive Activities (TADA) Act. On January 28, 1998, a special court found all of them guilty and sentenced all 26 to death. On May 11, 1999, the Supreme Court, however, did not consider the assassination as an act of terrorism, and hence upheld death penalty for only four – Sriharan and his wife Nalini, Santhan and A G Perarivalan. Three others – Robert Payas, Jayakumar and Ravichandran – were sentenced to undergo life imprisonment. While others, who got varying degrees of jail terms, have served their sentence and been released, the case of these seven convicts alone has been mired in a complex political web for three decades now.
Thanks to invocation of Article 161 by the M Karunanidhi regime in 2000, Nalini became a life convict. And in February 2014, the Supreme Court got the noose off three other death convicts, citing inordinate delay by the President in disposing of their mercy petitions pending since 2000. So, as on date, all seven are life convicts who have completed three decades in jails.
All of them had a fair trial and exhausted every legal option – appeals, reviews, curative pleas, mercy petitions and appeals against rejection of clemency pleas -- available to them. Right now they have no vested legal right to demand release from jails. The only escape route open to them is the state government invoking its sovereign power and releasing them.
For a convict to be released under those circumstances, there are only three avenues open. One, the state takes the Section 432 of CrPC route, wherein it would set a minimum period as cut off and shortlist all eligible lifers who have completed those many years in jail, and line up their cases before a statutory committee. The committee shall consider the gravity of offences, mental condition of the convict and the impact his release would have on society before taking a call. Section 435 of CrPC will come into play in case of a crime investigated by a central agency or involving Union government servants or its assets, the Centre has to be necessarily consulted before the release.
In the case of these seven convicts, the J Jayalalithaa government first took Section 432/435 route in February 2014 and wrote to the Centre seeking its response. In no mood to let them go, the Congress government at the Centre rushed to the Supreme Court and got a stay. Later the apex court ruled that ‘consultation’ mentioned in Section 435 would amount to ‘consent’ so if the Centre is unwilling, the state cannot release anyone prematurely. Thus went bust the Tamil Nadu government’s first bid to release the seven.
The second route is the President invoking Article 72 of the Constitution and grant pardon, reprieve, remission or suspend the sentence. In the case of Rajiv Gandhi assassins, the mercy petitions had been rejected and no President chose to invoke that power.
The only available third route was Article 161 of the Constitution, wherein the state recommends to the governor to pardon and release the convicts. This is what the Tamil Nadu government did in September 2018.
There is no constitutional provision for Purohit to ‘refer’ Tamil Nadu cabinet’s recommendation to the President, for the simple reason that a President cannot act upon a state cabinet’s recommendation. A governor can take legal opinion independent of the state's views or can return a recommendation, but if reiterated by the government, he has no other go except to give assent. Tamil Nadu itself has a brilliant precedent – Fatima Beevi, the then governor of Tamil Nadu, rejected the DMK government’s recommendation to commute death penalty of Nalini Sriharan in 2000, only to subsequently give her assent after a rap by courts.
By calling upon the President to invoke his power outside his jurisdiction and order release of the seven convicts, Stalin may be actually taking a dig at not one but two constitutional authorities — TN governor and the President.