The Supreme Court has released six convicts in the Rajiv Gandhi assassination case invoking its extraordinary powers under the Constitution to do “complete justice”, sparking off a controversy whether it was setting a wrong precedent for the future.
There is also the issue of whether the court could have invoked these extraordinary powers to release convicts in such a gross case involving the killing of a former Prime Minister of this country over delay in taking a decision on their fate.
Significantly, the top court had itself upheld death only for these six convicts in 1999. The top court while sentencing Nalini, Santhan, Murugan and Perarivalan, commuted the death sentence of three others to life and freed 19 others. The TADA court had sentenced all 26 accused to death in 1998.
Centre opposed plea to release convicts
To be fair to the central government, it did oppose the attempt to release the prisoners despite a recommendation made by the Tamil Nadu government suggesting it.
There’s no question of a state government merely consulting the union government in a case which had been investigated by a central investigating agency, the CBI, under a central law, it argued.
In such a case, consultation with the centre would mean its concurrence. Unless the centre agrees the convicts cannot be released. Solicitor General Tushar Mehta insisted that the case was sui generis as it involved the killing of a former PM.
But the top court rejected all these arguments and released them on the ground that they had spent 33 odd years in jail and had within that time written books, picked up degrees, shown satisfactory behaviour and done social service.
Many of them also suffered from various ailments, the court noted.
Cabinet advice binding on Governor
The court said that the state Cabinet’s advise is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
An inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review, especially when the Cabinet has taken a decision to release the prisoners and made a recommendation to this effect, it said.
The court said that reference of the recommendation to the President of India two and a half years after it was made is without any constitutional backing and is inimical to the scheme, especially when “the Governor is but a shorthand expression for the State Government”.
MP Special Police Establishment Act not applicable
The MP Special Police Establishment judgement is not applicable to this case, it said. No attempt has been made to make out a case of apparent bias on part of the state Cabinet or the Cabinet basing its decision on irrelevant considerations, it said.
Centre doesn’t have powers to remit/commute sentences under Section 302, IPC
The Union Government doesn’t have the power to remit/commute sentences imposed under Section 302, IPC, as no express power has been conferred on the Centre either under the Constitution or law made by Parliament.
In absence of a specific conferment, the executive power of the state extends to Section 302, assuming it is covered by Entry 1 of List III.
Unanswered: Is the criminal process endless?
There are other issues which the court perplexingly shied away from dealing with. The court ought to have examined whether a convict would be entitled to seek repeated benefits from the system in absence of any deadline for the constitutional authorities to act.
Under the Constitution, the President and the Governor enjoy unlimited powers of pardon under which they can condone punishments and sentences. The offence though does not go away. There is no law mandating the President or the Governor to take a call on any case within a specific period.
The executive can also exercise its remission powers under the CrPC. These are not to the exclusion of the convicts’ rights to pardon from constitutional functionaries. However, can the process of appealing for concessions be endless? That is a question that remains unanswered.
Crime not against individuals but state
In the past execution of death sentence of a rape-murder convict was delayed for a decade while he kept sending repeated clemency petitions to the President and Governor.
In case, the executive for reasons best known to it decides to sit on the files, can the court step into its shoes and take a call? Would the court be quick to sign an international treaty if the government dilly dallies on it?
So why the rush in this case to occupy the moral high ground by releasing these convicted prisoners? These legal issues apart, there’s one more aspect of the case that needs to be addressed.
Sonia Gandhi may have been large-hearted enough to pardon Nalini. Nalini’s crime though was not only against the 18 who died in the Sriperumbudur blasts.
Nalini’s crime was against the Indian state. The state is therefore under an obligation to punish the convicts as a deterrent to others who may think of taking up arms against fellow Indians.
A lenient stand against violence doesn’t send the right message to society at large. That is the reason why despite Mahatma Gandhi’s family forgiving Nathuram Godse, he was hanged.
The top court decision to release the Rajiv Gandhi case convicts is also addled by two other significant factors – Tamil Nadu party politics which has always been empathetic to the Sri Lankan Tamils and a series of ad hoc, piecemeal decisions on the executive’s remission powers.
The court initially said that a life term means the whole, natural life of a convict but later whittled it down to say that a convict could seek remission after completing 14 years in jail with good behaviour.
In other ad hoc rulings, the court has said that the state Governor could grant remission under Section 433A even when the convict hasn’t completed 14 years.
Low conviction rates made worse by lax punishment regime
All this has set the stage for a lax punishment regime, where punishment for every serious crime is watered down despite the system’s low conviction system.
In this particular case, a spiel has been given that the convicts were not part of the nucleus of the conspiracy — only Nalini was on the spot when the blast took place — to justify their release, forgetting the long-term consequences of letting politics rule our justice delivery system.
If every single criminal case is seen through politically-tinted glasses the day is not far when partisan politics will ensure that every criminal useful to the party in power is outside. These are issues which will crop up again in a different case at another time. There’s no shying away from them.
