Centre, not state, has ‘primacy’ in release: SC

Centre, not state, has ‘primacy’ in release: SC

Supreme Court says state government has no suo motu power to release the seven Rajiv Gandhi killers on remission without concurrence of Centre.

In what may spell a death blow to efforts by Tamil Nadu government to release seven killers of former Prime Minister Rajiv Gandhi, a Constitution Bench of the Supreme Court on Wednesday laid down the law that a State government has no suo motu power to remit sentences of persons who were convicted under a Central law and cases investigated by a central agency like the CBI.

In a majority judgment, a five-judge Constitution Bench held that Centre and not State government will have the “primacy” in deciding whether persons convicted in matters of the CBI or central agency should be released or not on remission as in the Rajiv Gandhi killers’ case.

Interpreting Section 435 (2) of the CrPC, the judgment authored by Justice F.M.I Kalifulla held that the word ‘consultation’ means ‘concurrence’. This means that TN govt should have got the prior consent of the Centre before issuing its February 19 order to remit the sentences.

The apex court further held that life imprisonment is for life.

Having thus laid down the law, the Constitution Bench however referred to a three-judge bench to separately decide the factual question of whether the February 19 order issued by the Tamil Nadu government releasing the Rajiv Gandhi killers was correct or not.

The court was delivering its verdict on on Tamil Nadu government’s decision to cancel the life sentences of convicts in the Rajiv Gandhi assassination case.

In 2014, a three-judge Bench led by then Chief Justice of India P. Sathasivam had prepared a set of seven questions for the Constitution Bench to declare the law on.

They include:

1. Does imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code mean imprisonment for the rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission?

2. Can a special category of sentence be made for the very few cases where the death penalty might be substituted with imprisonment for life or imprisonment for a term in excess of 14 years and can that category be put beyond the application of remission?

3. Is the ‘appropriate government’ permitted to exercise the power of remission under Section 432/433 of the Cr.PC after parallel power has been exercised by the President under Article 72 or by the Governor under Article 161 or by this court in its constitutional power under Article 32 as in this case?

4. Does Section 432(7) of the Cr.PC clearly give primacy to the executive power of the Union and exclude the executive power of the State where the power of the Union is co-extensive?

5. Which has primacy, the Union or the State, over the subject matter in List III of the Seventh Schedule of the Constitution for exercise of the power of remission?

6. Can there be two appropriate governments in a given case under Section 432(7) of the Cr.PC? Is suo motu exercise of the power of remission under Section 432(1) permissible? If, yes, is the procedure prescribed in the same Section mandatory or not?

7. Does the term “consultation” stipulated in Section 435(1) of Cr.PC imply concurrence?

The bench had said in its order that “the issues raised in the given case are of the utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system.”

In marathon hearings which continued for over three weeks before the Constitution Bench, Tamil Nadu government contended that judicial interference in States’ power to remit sentences affected citizens’ right to personal liberty.

Tamil Nadu government, represented by senior advocate Rakesh Dwivedi, drew a parallel between the assassinations of Mahatma Gandhi and former prime minister Rajiv Gandhi.

He said the courts should not take away the hope remission offers a life convict who has served 14 years of his life sentence.

The Centre had contended that no further mercy should be shown to convicts in the 1991Rajiv Gandhi assassination case. It submitted that the killing a former Prime Minister on Indian soil was a “diabolic act”.

The apex court had on February 20, 2014 stayed the Tamil Nadu government’s decision to release three convicts — Murugan, Santhan and Arivu — whose death sentences were commuted to life term by it on February 18 in the case.

It had later on also stayed release of four other convicts Nalini, Robert Pious, Jayakumar and Ravichandran in the case, saying there were procedural lapses on the part of the State government.

The Jayalalithaa government had decided to set free all the seven convicts who have been in jail for 23 years for their role in the assassination in Sriperumbudur.

KRISHNADAS RAJAGOPALNEW DELHI, December 2, 2015