New Delhi, April 25, 2014
The Supreme Court today referred the issues raised by a decision of the Tamil Nadu government in February this year to release the seven convicts serving life sentences for the May 21, 1991 assassination of former Prime Minister Rajiv Gandhi to a Constitution Bench.
A three-judge bench consisting of Chief Justice P Sathasivam and Justices Ranjan Gogoi and N V Ramana also extended the stay it had ordered on February 20 on the Tamil Nadu government's decision to release the prisoners, which means the convicts will stay in prison for the time being.
"All the issues raised in the given case are of 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. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014 before the Constitution Bench as early as possible, preferably within a period of three months," it said.
The court said that all the interim orders granted earlier by it would continue till a final decision is taken by the Constitution Bench in the matter.
The court had, on February 18 this year, commuted the death sentences awarded to three of the assassins of Mr Gandhi to imprisonment for life in view of the inordinate 11-year delay that had occurred in the disposal of their mercy petitions by the Union Government.
A day later, the Tamil Nadu government, on February 19, decided to release the trio -- V. Sriharan alias Murugan, T.Suthendraraja alias Santhan and A.G. Perarivalan alias Arivu -- and the four other convicts serving life terms in the case -- Murugan's wife Nalini, Ravichandran, Robert Pious and V Jayakumar. The four, who were arrested in 1991, are serving life terms.
Tamil Nadu Chief Minister J Jayalalithaa had, in a statement on that date, said that, while commuting the death sentence, the apex court had said that the convicts would remain in prison until the end of their life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure (CrPC), 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.
She said the state government had decided to invoke Section 432, taking into account the fact that the convicts had already spent 23 years in prison. She said that, as the case was investigated by the Central Bureau of Investigation (CBI), the state government would have to consult the Centre under Section 435 of the CrPC.
Ms Jayalalithaa said the Cabinet's decision would be conveyed to the Centre and, if it failed to respond in three days, her government would release the prisoners immediately using the powers conferred on it by the Constitution.
Solicitor General Mohan Parasaran argued before the apex court on February 20 that, in this case, the "appropriate Government" meant the Union Government inasmuch as the case was investigated by a Central agency, the CBI, and the convicts had been charged with offences under various laws enacted by the Union Government.
Mr Gandhi was killed by a female suicide bomber of the Liberation Tigers of Tamil Eelam (LTTE) late in the evening of May 21, 1991 at Sriperumbudur in Tamil Nadu when he arrived there for an election campaign meeting.
He had become Prime Minister after the assassination of his mother and then Prime Minister Indira Gandhi on October 31, 1984 and was in office until late 1989 when he lost the next general elections.
Mr Gandhi and 17 others were killed when the female bomber, while presenting a garland to him, triggered the explosives strapped to her body.
Murugan's wife Nalini was also given the death penalty, but it was commuted to life on the intervention of Mr Gandhi's widow, Sonia Gandhi, who is now the president of the Congress party, the main constituent of India's ruling United Progressive Alliance (UPA).
Today's orders by the Supreme Court came on a writ petition, under Article 32 of the Constitution of India, filed by the Union of India praying for quashing of the letter of February 19, 2014 issued by the Chief Secretary of the Tamil Nadu government proposing to remit the life imprisonment and release the seven convicts in the case.
Appearing for the Union of India, Attorney General Goolam E. Vahanvati submitted the Tamil Nadu government's proposal was illegal and without jurisdiction because it was not the "appropriate Government" in the present case, in which it had no role to play at any stage.
He also argued that the State Government could not have suo motu, without an application, initiated the process of remitting the sentence and releasing the convicts.
Further, Mr Vahanvati submitted that once the death sentence of a convict has been commuted into life imprisonment, the same has to be interpreted to mean the entire life of the convict and the executive cannot exercise the power of remission of sentence thereafter.
Appearing for the State Government, Mr Rakesh Dwivedi submitted that the “appropriate Government” as defined in Section 432(7) of the Code is the State Government in the present case. He also argued that the State Government of Tamil Nadu is the appropriate Government to consider remission/commutation of sentence under Section 302 read with Section 120B of IPC.
He said the power of the State Government under Section 432(1) is very wide and it can be exercised suo motu by the appropriate Government. When the power is exercised suo motu then Section 432(2) is not applicable, he said.
With regard to the contention of the Union of India that once the power of commutation/ remission has been exercised in a particular case of a convict by a Constitutional forum, particularly the Supreme Court, then there cannot be a further exercise of the Executive Power for the purpose of commuting/remitting the sentence of the said convict in the same case, Mr.Dwivedi submitted that this was unacceptable since in this case the court had exercised the judicial power of commuting the death sentence into life imprisonment by its judgment of February 18.
"The submission of the Union of India, if accepted, would have horrendous consequences. A convict whose death sentence has been commuted to life imprisonment by this Court on account of breach of Article 21 would have to remain imprisoned necessarily till the end of his life even if he has served out 30-50 years of sentence and has become old beyond 75 years or may be terminally ill yet there would be no power to remit/commute," he said.
The court said it had given its most anxious consideration to all the contentions made before it and was of the opinion that it would not be appropriate for a three judge-bench to examine and decide the correctness of the verdict of another three-judge bench in the Swamy Shraddananda case. They also said that, inevitably, the decision of the Constitution Bench in the Bhagirath case would also be required to be examined.
"Thus, we deem it fit to refer this matter to a five Judges’ Bench to reconcile the dispute emerged," it said.
On the question of the remission of the sentence, the court said an issue of such a nature had been raised for the first time in the Supreme Court, which has wide ramification in determining the scope of application of power of remission by the executives both the Centre and the State.
"Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72 or 161 or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive," it said.
On the issue of who is the "appropriate Government", the judges said they considered it fit to refer the matter to the Constitution Bench for an authoritative interpretation on the same. In fact, such a course of action is mandated by the provisions of Article 145(3) of the Constitution, it said.
The following are the questions framed by the court for the consideration of the Constitution Bench:
(i) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (supra), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?
(ii) Whether the “appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case?
(iii) Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of Union is co-extensive?
(iv) Whether the Union or the State has primacy over the subject matter enlisted in List III of Seventh Schedule of the Constitution of India for exercise of power of remission?
(v) Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?
(vi) Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section if, yes whether the procedure prescribed in sub-clause (2) of the same Section is mandatory or not?
(vii) Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”?
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