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Releasing Rajiv’s killers: who has the power?

Poornima Joshi New Delhi | Updated on March 12, 2018 Published on February 19, 2014

Section 432 of the CrPC clearly lays down that the appropriate government, at any time, without conditions or upon any conditions which the person sentenced accepts, can suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

Does the Tamil Nadu Cabinet have the power to release former Prime Minister Rajiv Gandhi’s assassins? Or is this subject to the approval of the Central Government?

On the face of it, there seems little ambiguity in the judgement delivered by the three-judge bench of the Supreme Court, comprising Chief Justice P Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh.

In the concluding paragraph of the judgement, the judges maintain:

“…in the cases of V Sriharan alias Murugan, T Suthendraraja alias Santhan and AG Perarivalan alias Arivu, we commute their death sentence into imprisonment for life.

“Life imprisonment means end of one’s life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 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.”

Section 432 in the CrPC, relating to the power to suspend or remit sentences, clearly lays down that the appropriate government, at any time, without conditions or upon any conditions which the person sentenced accepts, can suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

In this section and in Section 433, the expression “appropriate government” will be the Central Government where the sentence is for an offence against or any law relating to a matter to which the executive power of the Union extends.

In other cases, it will be the government of the State within which the offender is sentenced or the said order is passed.

While some experts hence hail the Tamil Nadu Government’s decision as an “extremely progressive” move, former Additional Solicitor General Altaf Ahmed, who led the prosecution in the Rajiv Gandhi assassination case, says it is “unprecedented”.

“I cannot remember a case where the murder accused had been granted remission. This is an unprecedented case,” he said.

Contrary to what experts such as Rajiv Dhawan and Colin Gonsalves believe, Ahmed is of the view that the Tamil Nadu Cabinet’s decision is subject to the Central Government’s approval.

“Since the the Central Bureau of Investigation (CBI) was the investigative agency, the State Government’s decision is subject to the Central Government’s approval,” he said.

Terror charges

But this, according to senior counsel Colin Gonsalves, is a spurious argument. “The fact is that the terror charges under TADA were quashed by the apex court.

These accused were tried under the normal procedural code. So, the Government of Tamil Nadu is the appropriate authority in this particular case,” Gonsalves said.

So is it contrary to the principle of natural justice in the case of remission for those who had been on death row?

For senior lawyer Rajiv Dhawan, the answer is an emphatic ‘no’.

‘Untenable’ argument

“The argument that these people were on death row because of the heinous nature of the crime as well as it being a rarest of the rare case and therefore they cannot be freed, is untenable.

“The option of the State exercising power of mercy on convicts who were once on death row cannot be foreclosed,” said Dhawan.

Secondly, according to him, this argument cannot be made in this case especially because the Supreme Court has clarified that life imprisonment is for life subject to any remission granted by the appropriate government.

“Since I am against death penalty to begin with, any exercise of power of mercy is welcome.

“But in the present case, the State had no right to keep them in jail for so long,” he asserted.

‘Absolutely unconscionable’

The principal Opposition party’s key legal expert and senior leader, Arun Jaitley, told Business Line: “I find this absolutely unconscionable that a Prime Minister is assassinated and the institutions of this country find compassion for his killers…that they should celebrate freedom after having conspired to kill a Prime Minister.”

Published on February 19, 2014
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