Millennium Post

Caught in legal labyrinth

The brouhaha over the decision of the Tamil Nadu government to  release the three convicts in the Rajiv Gandhi assassination case has died its natural death with the the Supreme Court staying the release of A G Perarivalan alias Arivu, Shriharan alias Murugan and T Suthentiraraja alias Santhan.

In its order passed on Thursday, the apex court agreed to hear the case on the 8th of next month. The stay was granted on a plea by the Centre against the decision of the state government to release seven convicts, including the aforesaid three who were awarded death sentence which was finally commuted to life sentence by the Supreme Court on 18 February inter alia citing inordinate and unreasonable delay in their execution which violated their fundamental rights under Article 21 of the Constitution.

Prime minister Manmohan Singh on Thursday issued a scathing criticism of the Tamil Nadu government’s decision in a statement shortly after a meeting of the Union cabinet. ‘The assassination of Shri Rajiv Gandhi was an attack on the soul of India,’ Singh said. ‘The release of the killers of a former prime minister of India and our great leader, as well as several other innocent Indians, would be contrary to all principles of justice. No government or party should be soft in our fight against terrorism,’ he said.

It is interesting to note that the apex court while commuting their death sentence in its order on 18th of this month had also said, ‘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 provisions and further substantive check in Section 433-A of the Code.’ Therefore, it is amply clear that remission could be granted by the appropriate government following due procedure.

Section 432 empowers the appropriate government, either the state or the union government as defined in 432(7), to suspend or remit the whole or part of the punishment to which a person has been sentenced. Section 432(7) defines the expression ‘appropriate government’ as: (a) In cases, where the sentence is for an offence against, or the order referred to in sub section (6) is passed under any law relating to a matter to which the executive power of the Union extend, the Central government: (b) in other cases, the government of the state within which the offender is sentenced or the said order is passed.

433-A of the Code of Criminal Procedure (CrPC) imposes restrictions on the powers of remission or commutation in certain cases. It states that where a life sentence is imposed for which death is one of the punishments provided by law or where death sentence on a person is commuted into life imprisonment, then such a convict shall not be released from prison unless he had served at least 14 years of imprisonment. In the current case, all the convicts have undergone 14 years of imprisonment or more thereby entitling them benefit under this section.

In addition to the above, Sections 434 and 435 of CrPC are also relevant. Section 434 provides that in case of death sentence Central government can also exercise the power of suspending or remitting the sentence like the state government.

On the other hand, according to section 435, state government can exercise the power of suspension or remission of sentences only after consultation with the Central government. It goes on to say that if the case is investigated by the Central Bureau of Investigation (CBI) or by any other empowered agency under any Act other than CrPC or if the case involves misappropriation or destruction of, or damage to, any property of the Central government, or if the offence was committed by a person in the service of the Central government, while acting or purporting to act in discharge of his official duty, the state government has to consult the Central government before exercising the power of remission. Further, if the offence involved relates to matters which fall under the executive powers of the Union government, the state government is mandated by Section 435 to consult with the Central Government.

These being the legal provisions, the state needs to consult the Centre before releasing the seven convicts as the provisions under the above discussed Sections of the Code mandates. As the case was investigated by SIT of the CBI and conviction was obtained under Acts like Passport Act, Foreigners’ Act etc this consultative process has to be carried out. The key word here is consultation. In Thursday’s order, the Supreme Court has restrained the state government from releasing the convicts and has directed the Tamil Nadu government to maintain status quo in the matter. One has to wait for the decision by the apex court.

The author is a former senior information service officer
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