Court to study remission of sentence under Article 161 in Melavalavu case

Published : December 27, 2019 17:12 IST

The memorial for the six slain Dalits at Melavalavu village in Madurai district. Photo: K. Ganesan

The Tamil Nadu government’s use of “executive clemency” under Article 161 of the Constitution for the 13 life convicts in the 1997 murder of six Dalits at Melavalavu village in Madurai district has come under judicial scrutiny. Among the killed was the elected village panchayat president.

A two-member Madurai bench of the Madras High Court agreed to study the issue in detail when it was hearing a petition from P. Rathnam, a senior lawyer who objected to the remission of the life sentences. Rathnam also drew the court’s attention to the remission of sentence of the three convicts in the Dharmapuri bus burning case of 2000, in which three college girls were burnt alive. The Tamil Nadu government invoked Article 161 of the Constitution (on the power of the Governor to grant pardon and to suspend, remit or commute sentences in certain cases) to remit the sentences of the life convicts in both the cases.

The State government did not prefer Sections 432 and 433 of the Criminal Procedure Code (CrPC), which it invoked to grant remission to the seven convicts in the Rajiv Gandhi assassination case when Jayalalithaa was Chief Minister, in 2014. Section 432 empowers the “appropriate government” to remit or suspend a sentence at any time with or without any condition. If any conditions are violated, the government can cancel or suspend the remission and the offender could be arrested without warrant and remanded to serve the rest of the term of the sentence.

Section 433 talks about the powers of commuting the sentence. Section 433A says that if any person’s death sentence is commuted to life, then he should have served at least 14 years in prison. Sections 434 and 435 stipulate that a State government before remitting a sentence has to consult the Centre if the convicts have been punished under Central laws. The expression “appropriate government” in Subsection 7 of 432 means the Centre if the sentence is for an offence against or any law relating to a matter to which the executive power of the Union extends.

In the Rajiv Gandhi assassination case, the Supreme Court, acting on a petition from the Centre, cancelled the remission on the grounds that “life sentence is meant for life”. The Constitution Bench of the Supreme Court, in September 2016, ruled that the State government did not have suo motu powers to release the convicts on remission without the concurrence of the Centre since the persons were sentenced under Central laws and after investigation by a Central agency such as the Central Bureau of Investigation.

Nalini, one of the convicts in the Rajiv assassination case, has challenged the constitutionality of Sections 432/433 of the CrPC in the Madras High Court.

In the light of this experience, the Tamil Nadu government, backed by a Cabinet decision in January 2018, opted for the grant of “executive clemency” under Article 161 in the Rajiv assassination case and sent the recommendation to the Governor. The Governor is yet to take a decision on it and this “delay” has come in for criticism. S. Prabu Ramasubramanian, counsel for Perarivalan, one of the convicts in the Rajiv assassination case, told Frontline that the Tamil Nadu Governor was evading the finality in the issue of remission. “Since January 2018 he has been sitting on the Cabinet decision of releasing the prisoners, which he should not. He knows well that any decision that goes against the Cabinet’s decision will not be tenable under law. The State government has been studiously pursuing the issue of release legally and constitutionally following all procedures. The Governor knows that the Cabinet decision will not be against the validity of the law if he either rejects the order or reverts it to the State,” he said.

In the Melavalavu case, of the 44 persons who were charge-sheeted, 17 were found guilty by a Salem Sessions Court. While one accused died of snake bite during the trial, the remaining 16 were handed the life sentence, which the High Court and the Supreme Court upheld. Of the 16, three were given remission in 2008 and the remaining 13 were released recently for “good conduct” on the occasion of the birth centenary celebrations of former Chief Minister M.G. Ramachandran.

The remission of the life sentences in the Dharmapuri bus burning case on November 19, 2018, also created a controversy. The incident took place on February 2, 2000, near Dharmapuri when AIADMK cadre indulged in violence across the State after a Special Court in Chennai sentenced former Chief Minister Jayalalithaa to one year’s imprisonment in the Kodaikanal Pleasant Stay Hotel case. The girls were burnt alive in their college bus.

Legal experts and activists say the remissions, using either statutory provisions or executive and judicial provisions, have led to many interpretations in several judgments. “But the Tamil Nadu government’s move to release the Melavalavu murderers is creating fear among Dalits in the village. It is against a society that has been suppressed and intimidated,” said A. Kadir of Evidence, a Madurai-based Dalit forum. Similarly, activists that Frontline spoke to decried the release of the convicts in the bus burning case; they were serving life sentences after the Supreme Court commuted their death sentence. The activists alleged that they were released because they were all AIADMK party cadre.

The lawyer-petitioner Rathnam called the remission of the sentences, particularly in the Melavalavu case, “a dangerous precedent”. The court, he told Frontline, understanding the sensitivity of the issue and to avoid any untoward law and order problem, issued a set of interim directions to the State on the released convicts. The court asked them to stay in Vellore district pending disposal of the petition and to present themselves periodically before the District Probation Officer and Superintendent of Police of Vellore. Even their passports were asked to be deposited with the police.

The State government told the court that the release of three convicts in 2008 had not created any law and order situation. It also told the Bench that it had scrutinised all the relevant documents and the recommendations of the committee that selected prisoners for possible remission for their premature release.

The judges, Justices S. Vaidyanathan and N. Anand Venkatesh, felt that the intention of the accused was not only to commit murder but also to terrorise the Dalit community of the village so that they would not take part in the panchayat election.

The court noted that the case “cannot be looked [at] from the angle of a regular murder case and this case has an impact on the persons belonging to the downtrodden section of the society and the society at large and it also set a precedent for all future cases of similar nature. A reading of the [State government’s] status report prima facie shows that the case has not been strictly scrutinised from this angle.”

The court further held that “what Ambalakarars [the other backward class (OBC) group that wields power in Melavalavu village] could not achieve legally has been achieved by resorting to violence and taking law into their own hands.”

The village panchayat was reserved for Dalits. The court pointed out the lacunae during the trial of the case. It said that though the prosecution clearly proved the charges under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989, the accused were not given punishment under it. There was no appeal also from the State government also on this, the High Court pointed out. [The sentences were given under the Indian Penal Code].

Activists said the murders created a fear psychosis in the minds of the oppressed. The High Court drew attention to the Supreme Court observation in Epuru Sudhakar and another vs Government of A.P. and Others (2006) that in the use of parallel powers other than laws to grant pardons and reprieves under Articles 72 [by President] and 161 [Governor] of the Constitution, a matter of discretion was to be exercised on public consideration keeping in mind the family of the victims and society as a whole. The apex court observed that the power of remission should be exercised in a manner which is consistent with the basic principles of fairness and certainty.

The High Court bench, while accepting that the power of remission and pardon was placed “on a high pedestal”, noted that the exercise of such power could be a subject matter of judicial scrutiny if the relevant factors were not taken into consideration before the government order was passed for premature release. The court asked the State government to submit all the relevant documents for its scrutiny.

The politics of remission of sentences of convicts in Tamil Nadu has remained controversial. As suggested by the Madurai Bench of the Madras High Court, lawyers, activists and social workers have urged the State and Union governments to formulate proper guidelines on remissions, especially in cases involving diabolic crimes. However, the fact, an activist said, is that remission of sentence in Tamil Nadu and elsewhere in the country was all about politics and had little to do with reformation of prisoners. 

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