Hopes that Rajiv Gandhi killers could soon walk out of the prison have been shattered. On Friday, the Supreme Court put on hold the decision by the Tamil Nadu Government to release the seven life convicts in the case till a Constitution Bench decides whether the State or the Centre had power under the law to remit sentence of a life convict after his death sentence is commuted by the President or the Supreme Court.
The court was faced with a unique situation where the pardon power under the Constitution was being exercised twice by the Executive. The Supreme Court had commuted the death sentence of three of the Rajiv Gandhi killers — Santhan, Arivu and Murugan — on the ground of inordinate delay of 11 years to decide on their mercy petitions.
Earlier, on similar grounds, the SC had commuted death sentence of 15 death-row convicts on January 21. But within 24 hours of the apex court’s decision, the Tamil Nadu Government remitted the remaining life term of all seven killers.
The remaining four convicts were Nalini, Jayakumar, Robert Payas and P Ravichandran. On February 19, the Centre received a letter from the Tamil Nadu Government for its view within three days. Instead, the UPA Government approached the apex court questioning the “political” decision by the Jayalalithaa Government ahead of elections.
The Jayalalithaa Government argued that under the Criminal Procedure Code Sections 432 and 435, the State can remit the sentence of the accused as they had served punishments under the Central Acts, thus excluding Centre’s jurisdiction.
Under Section 435, all it was required to do was to consult Centre, which again would not be binding on it. The Bench of Chief Justice P Sathasivam, Justices Ranjan Gogoi and NV Ramana while referring the matter to a Constitution Bench of five judges said, “The issue of such a nature has been raised for the first time in this court, which has wide ramification in determining the scope of application of power of remission by the executives both the Centre and the State.”
The first question referred to the five judges was, “Whether once power of remission under Article 72 (by President) or 161 (by Governor) or under Article 32 (by Supreme Court)is exercised, is there any scope for further consideration for remission by the executive.” If so, some ancillary issues also arose as to who had the power — Centre or State, and in cases where both could exercise jurisdiction, who among both will have primacy. Further, under Section 435, whether consultation with Centre meant concurrence.
The court even ventured into yet another critical area relating to sentencing policy and sought review of a 2008 decision in Swamy Shraddananda case where SC sentenced a man to life restraining the executive from exercising its remission powers. The Constitution Bench will consider whether such a “special category” of sentence could be passed.