Does Jaya really have power to overrule Centre on Rajiv's killers?

With Congress vice-president Rahul Gandhi stating his unhappiness at Tamil Nadu chief minister Jayalalithaa’s decision to release the seven convicts in the murder case of former prime minister Rajiv Gandhi, all bets are off on whether the Centre will acquiesce. And the AIADMK chief has already indicated that if the UPA rejects her decision, she will “go ahead and use” state powers to do so. The Congress has already indicated that the Central government will move Supreme court against the TN government’s decision. [caption id=“attachment_1373851” align=“alignleft” width=“380”]  Jayaram Jayalalitha. Reuters image[/caption] But apparently, if the Centre ignores or rejects the TN government’s proposal to release the prisoners, the goernment can then approach the governor and ask him to exercise his constitutional power of remission. A report in The Indian Express said that under the existing legal framework, the state cabinet can resolve to exercise the power of remission vested in it under Section 432 of the Criminal Procedure Code. If, however, the conviction is made following prosecution by a central agency and under a central Act, then the state government is bound to consult the Centre. (The seven are also convicted under the Arms Act and Explosive Substances Act.) But if the Centre chooses to reject the proposal, the state Cabinet can indeed find a way out. According to the report, “Article 161 of the constitution gives the governor the power to grant pardons and to suspend, remit or commute sentences. Although the convicts’ mercy petitions have already been rejected once by the governor, they can now move for a different relief: remission of sentence in view of the changed circumstances. There are various judicial pronouncements besides the 41st Law Commission’s report maintaining that the governor is bound to act on the aid and advice of the council of ministers, unless he acts in his own discretion under the exceptions provided for in the Constitution.” Since the governor will have to send the fresh  plea for remission to the state Cabinet, Jayalalithaa is almost cetain to have her way. That also explains why Jaya has set a tight three-day deadline for the Centre to respond. The report quotes retired judges as saying the state government can go ahead and release the prisoners.