Constitution Bench of the Supreme Court comprising Chief Justice H.L. Dattu, Justice F.M.I. Kalifulla, Justice P.C. Ghose, Justice A.M. Sapre and Justice U.U. Lalit on Thursday allowed the State Governments to grant remission and set free life term convicts whose cases have not been investigated by the CBI or those not probed under central laws.
The Bench however explained that the Government cannot grant remission in cases where life sentence means the entire life or where the term has been specified like 20 years or 25 years and in rape and murder cases.
The Court modified its interim order dated July 9, 2014, through which it had restrained the State Governments from releasing convicts on grant of remission.
Further, remission will only be granted in cases where no application was preferred (by the accused) or considered suo motu by the state earlier. "We also permit the president under article 72 and the governor under article 161 to exercise their constitutional powers to grant remission or clemency in such cases," the court said in its interim order.
The Court however clarified that such relaxation would not be applicable in respect of the seven convicts in the former Prime Minister Rajiv Gandhi assassination case.
The Bench was hearing the reference made to it with regards to the question "whether once power of remission under article 72 or 161 or by this court exercising the constitutional power under article 32 is exercised, is there any scope for further consideration for remission by the executive".
In furtherance of this, the bench was urged to examine the question whether there could be a special category wherein, after death penalty has been commuted to life imprisonment, such a convict is put beyond the applicability of remission and would remain behind the bar in excess of life term of 14 years.
Appearing for Tamil Nadu, Senior Counsel Rakesh Dwiwedi reiterated the fact that the convicts in the Rajiv Gandhi assassination case had been in jail for the last 24 years.
The Court held as follows;
"Accordingly, we modify our order dated 09.07.2014, whereby we had restrained the State Governments from exercising power of remission or commutation to life convicts. The said order dated 09.07.2014 shall only apply to cases : I. where life sentence has been awarded specifying that – a) the convict shall undergo life sentence till the end of his life without remission or commutation;b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.II. where no application for remission or commutation was preferred, or considered suo motu by the concerned State Governments/authorities.III. where the investigation was not conducted by any Central Investigating Agency like the Central Bureau of Investigation.IV. where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence. V.However, we clarify that the President of India in exercise of his powers under Article 72 of the Constitution of India and the Governors of the States in exercise of their powers under Article 161 of the Constitution of India are not prevented from exercising their power(s), insofar as the cases referred to in Para 4 above are concerned.VI.We further make it clear that this order shall not be applicable to the respondents in Writ Petition (Crl.) No.48 of 2014".
The Bench also asked the Solicitor General as to how central government could take away the powers of the state government for granting remission in the changed circumstance after the death sentence of three conspirators - V. Sriharan alias Murugan, A.G. Perarivalan alias Arivu and T. Suthendraraja alias Santhan - was commuted to life terms.
The Tamil Nadu Government defended its stand on remission of the convicts in Rajiv Gandhi assassination, stating that the powers of the Governor and the President are co-extensive.
Challenging the Centre’s stand that a convict cannot ask for mercy again if it is rejected once, the Court asked, “All of us live in hope. What is the point in keeping a man in jail for his whole life if he cannot get remission? Give him the death sentence. That will be better,” the bench said. “We follow the reformatory penal system. If there is no scope of remission then why would a convict, serving life term, try to reform himself?”
On July 15, 2015, the Constitution Bench comprising Chief Justice H.L. Dattu, Justice F.M.I. Kalifulla, Justice P.C. Ghose, Justice A.M. Sapre and Justice U.U. Lalit, had deferred the hearing of the case to July 21, after it was informed by Solicitor General Ranjit Kumar that the issue would require extensive hearing for three to four days.
On February 18 last year, the Supreme Court granted relief to the three convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, by commuting their death sentence into life term on the grounds that the 11-year delay in deciding their mercy petition by the Central government had a dehumanizing effect on them.
The very next day Tamil Nadu Government led by Jayalalithaa decided to set free all the seven convicts in the assassination case.
The court then on February 20 stayed the decision to release of three convicts–Murugan, Santhan and Arivu— whose death sentence was commuted to life term by it on February 18 in the case, saying there had been procedural lapses on the part of the state government on the decision to release them.
The apex court later on had also stayed release of the other four convicts, Nalini, Robert Pious, Jayakumar and Ravichandran in the case.
On April 25, 2014, the matter was referred to a Constitution Bench. The interim order to stay the Tamil Nadu government’s decision to free them was ordered to be in effect till the matter is decided by the Constitution Bench. The Court had framed 7 questions to be decided by the Constitution Bench. Read the LiveLaw story here.
Read the order here.