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Print edition : August 21, 2015

Convicts Santhan, Murugan and Perarivalan, serving life sentences in the Rajiv Gandhi assassination case. Photo: The HIndu Archives

The Supreme Court is hearing a batch of petitions challenging the constitutionality of restraints on the State government’s power to remit sentences.

On July 23, the Supreme Court’s Constitution Bench comprising the Chief Justice of India, Justice H.L. Dattu, and Justices Fakkir Mohamed Ibrahim Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre and Uday Umesh Lalit relaxed a significant restraint that the court had imposed on July 9 last year on State governments in terms of exercising the power of remission or commutation benefiting life convicts.

As all State governments had opposed this restraint on the grounds that it impinged on their federal powers, the court allowed State governments to grant remission to life-term convicts whose cases have not been investigated by a Central agency such as the Central Bureau of Investigation (CBI) or under Central laws. The bench clarified that State governments could not grant remission in cases where courts had specified that life sentence meant the entire life or 20 years or 25 years and in rape-cum-murder cases.

The bench, however, said, without specifying reasons, that this relaxation would not apply to the seven convicts in the Rajiv Gandhi assassination case. In 2014, the Central government filed an unusual writ petition in the Supreme Court seeking the quashing of the Tamil Nadu government’s proposal to remit the life sentences of the seven persons and release them. The seven include Murugan, Santhan and Perarivalan, whose death sentences were commuted by the Supreme Court on the grounds of undue and inexplicable delay by the government in considering their mercy petitions. The remaining four convicts are Nalini, Robert Pious, Jayakumar and Ravichandran.

The Tamil Nadu government sought the Centre’s views on its proposal dated February 19, 2014, and within three days of receiving it the Central government approached the Supreme Court. The State government, while exercising the power of remission under Section 432 of the Code of Criminal Procedure (CrPC), is bound to consult the Centre if the case was investigated by the CBI. The Tamil Nadu government’s proposal would not have caused unease but for the fact that the Supreme Court had commuted the death sentences of three convicts in the case a day earlier, that is, February 18, 2014.

The Supreme Court’s three-judge bench referred the Centre’s petition to a five-judge bench after granting an interim stay on the Tamil Nadu government’s proposal. The Constitution Bench led by Chief Justice of India H.L. Dattu is currently hearing the matter. The bench is likely to throw light on important questions of constitutional importance. One is whether imprisonment for life means imprisonment for the rest of the life of the prisoner and another is whether a convict undergoing life imprisonment has a right to claim remission.

The court also sought to know whether a special category of sentence may be created for the very few cases where the death penalty might be substituted by the imprisonment for life or imprisonment for a term of more than 14 years and to put that category beyond the remission power of governments. The bench will also answer whether the sentence of a prisoner whose death penalty has been commuted to life can be remitted by a State government.

The Central government, through Solicitor-General Ranjit Kumar, has argued before the bench that Section 45 of the Indian Penal Code (IPC), which defines “life” as the life of a human being, would mean that life imprisonment was for the rest of the life of a person. Section 55 of the IPC provides the appropriate government the power to commute life imprisonment to any other sentence not exceeding 14 years imprisonment. Section 55A defines the appropriate government as the Central government where the Union’s executive power extends and the State government where the State’s executive power extends as well as the State where the offender is sentenced.

The Criminal Law Amendment Act, 2013, introduced the term, “the remainder of that person’s natural life”, while prescribing punishment for offences such as trafficking of minors on more than one occasion, and rape-cum-murder or if the rape victim is reduced to a persistent vegetative state. Other provisions in the IPC, such as Sections 392, 222, 457 and 458, specifically used the term “fourteen years” for the maximum period of punishment. Section 433-A of the CrPC prescribes that for commutation of sentence of life into a lesser sentence, no less than 14 years would actually have to be served.

The court is also likely to pronounce on whether Section 435 of the CrPC, which requires the State government to act in “consultation” with the Central government while commuting punishment for an offence investigated by the CBI, as in the Rajiv Gandhi assassination case, would actually mean “concurrence”.

In a few cases earlier, the Supreme Court, while commuting the death penalty, had directed that the alternative of life imprisonment should be without remission, or that the period of life imprisonment should be between 25 and 35 years, or that the period of remission would not start until a certain amount of time had been spent in jail.

In Maru Ram vs Union of India (1980), the Supreme Court questioned the legislature’s conclusion that life convicts would have to spend a minimum of 14 years and termed it “penal superstition” as no scientific or research material had been placed by the state to support this. However, the court concluded in that case that the long penal incarceration for persons convicted of grave offences was invalid.

The Tamil Nadu government has argued before the Supreme Court that the three convicts in the Rajiv Gandhi assassination case are entitled to a fresh consideration of their cases by the executive after their death sentences were commuted by the Supreme Court, as this amounts to a change in circumstances. The remission power, once exercised by each authority, would ordinarily get exhausted, but would be available afresh if there is a change in circumstances, the State government contended. The term “change in circumstances” could include not only commutation by the authorities, but terminal illness of prisoners, the state suggested to the bench. The Supreme Court, while hearing Yakub’s petition seeking the quashing of the death warrant against him, asked how many times a prisoner could keep on filing mercy petitions before the Governor or the President. The Attorney-General argued before the bench that in the interest of finality, this practice should be discouraged by the court.

In the remission matter before the Constitution Bench, the court specifically asked whether it was possible to restrict the mercy powers of the President and the Governor under Articles 72 and 161 of the Constitution, as mercy petitions were sent repeatedly to these authorities by the same prisoner. The Tamil Nadu government replied that any restriction on these powers would have to be done through constitutional amendments and not by a dictum of the court.

In the ongoing hearing in Union of India vs Sriharan @ Murugan by the Supreme Court’s Constitution Bench, the question whether a death-row convict can submit more than one mercy petition came up for consideration. Counsel generally opined that there is no bar on the number of mercy petitions that a convict can submit either himself or on his behalf by others, but the executive will consider subsequent mercy petitions only if it raises new grounds, not raised in the earlier ones.

The senior advocate for Tamil Nadu, Rakesh Dwivedi, told the Supreme Court that while it is permissible in the United States and the United Kingdom to give life sentences without parole, this has been prohibited in Mexico, Germany and some other countries in Europe as being contrary to human dignity. A life sentence without parole would rule out any chance of reform, he cautioned the bench.

While entering a prison to serve a long sentence, prisoners generally feel as if they are entering a dark tunnel, whereas a chance of remission by governments at a later date would offer them a ray of light as well a reason to rehabilitate themselves, he told the bench. He was categorical that prisoners had a right to be considered for remission, which was guaranteed by the Constitution.

Rakesh Dwivedi also drew the court’s attention to the fact that Section 32-A of the Narcotic Drugs and Psychotropic Substances Act, which bars remission, suspension or commutation of sentences awarded under the Act, is under a separate challenge before the Supreme Court as being violative of Articles 72 and 161 of the Constitution.

The Supreme Court wanted to know whether in gruesome cases the court can impose an exemplary sentence for a very long period of time without remission under Article 142 of the Constitution. In response, Dwivedi said the power under Article 142 could only extend to punishments prescribed by law and could not travel beyond the law to give a new type of punishment. The only possible solution to enhance punishment is by parliamentary legislation, he clarified. He was clear that unreviewable life imprisonment would itself be dehumanising.

(This article draws from the summary of arguments in the case before the Supreme Court as posted on the blog Law and Other Things by Nishant Gokhale of the Death Penalty Litigation Clinic of National Law University, New Delhi.)

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