Tamil Nadu govt does not have power to release Rajiv Gandhi's killers: Supreme Court

New Delhi: Dampening hopes of release for the killers of former Prime Minister Rajiv Gandhi, the Supreme Court on Wednesday ruled that the Centre has “primacy” over states’ right to grant remission and referred the issue of clemency for the assassins to a three-judge bench. Virtually overturning the Tamil Nadu government’s clemency decision, it also said the state governments must secure “concurrence” of the Union government before freeing convicts in certain cases. [caption id=“attachment_2529756” align=“alignleft” width=“380”]  Representational image. Reuters [/caption] A five-judge bench, which settled questions arising out of Tamil Nadu government’s decision to free Gandhi’s assassins, dealt elaborately with the situations where the Centre will prevail over states’ decision to grant remission which included cases where their powers are coextensive, where trial has been held under central laws or conducted by agencies like CBI, or when they pertain to death penalty. The Constitution bench headed by Chief Justice H L Dattu, who demitted office today, also said that states cannot exercise “suo motu” the power to grant remission without any specific plea from the convicts. “Having regard to the principles culled out in paragraph…, it is imperative that it is always safe and appropriate to hold that in those situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of ‘Consultation’ in reality be held as the requirement of ‘Concurrence’,” the court said in its 258 page verdict. The bench, also comprising justices F M I Kalifulla, P C Ghosh, A M Sapre and U U Lalit, was unanimous in answering all questions referred to it by a smaller bench, except one which related to the issue whether courts can quantify jail term in offences and consequently stop the states from remitting sentences in certain cases under the Code of Criminal Procedure. The bench also ordered that the case relating to the grant of remission to the killers of Gandhi be sent to a three-judge bench to deal with it in pursuance of guidelines laid down in the judgement. “Now that we have answered the Reference in the matters, the matters will now be listed before an appropriate three learned Judges’ Bench for appropriate orders and directions in the light of the majority Judgement of this Court,” the Chief Justice said. The court dealt extensively with questions as to whether the Section 432(7) of CrPC gives “primacy” to the Centre over states where either of two can exercise the power of remission and whether there can be two appropriate governments in a given case under the provision. “The status of appropriate government, whether Union or the State Government, will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) “…..and, in the event of specific Executive Power conferred on the Centre under a law made by Parliament or under the Constitution itself, then in the event of conviction and sentence covered by the said law of Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution,” it said. The court dealt with instances where cases are registered under either state laws or the central laws and laid down the test to determine as to who will prevail and under which circumstances. “The definition, therefore, makes it clear that insofar as it relates to commutation of death sentence, the Appropriate Government is the Central Government. That apart, if the sentence of death or life is for an offence against any law relating to a matter to which the Executive Power of the Union extends, then again, the ‘Appropriate Government’ is the Central Government,” it said. Applying the principle stated in an apex court decision, the bench said that in other words, cases which fall within “the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre”, the Union government will have the “primacy” and would be treated as “appropriate government” having power to grant remission. “Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the state government,” it said. The apex court had on February 20 last year stayed the Tamil Nadu government’s decision to release three convicts -Murugan, Santhan and Arivu, whose death sentence had been commuted to life term by it two days before. The Supreme Court had later also stayed the release of four other convicts – Nalini, Robert Pious, Jayakumar and Ravichandran, saying there were procedural lapses on part of the state government. Santhan, Murugan and Arivu are currently lodged in the Central Prison, Vellore. The other four are also undergoing life sentence for their role in Gandhi’s assassination on May 21, 1991 in Sriperumbudur, Tamil Nadu. The Center had asserted that the killers of former Prime Minister Rajiv Gandhi did nor deserve any mercy as the assassination was the result of a conspiracy involving foreign nationals. The Tamil Nadu government, on other had, had asserted the states have power to grant remission under the law and trashed accusations that its decision to release the seven convicts was “political and arbitrary”. PTI