The Supreme Court’s intervention restraining Tamil Nadu from releasing the seven Rajiv Gandhi assassination convicts has averted a Constitutional face-off between the Centre and the state. In her tearing hurry to make political capital out of the Supreme Court’s reasoned judgment commuting the death penalty against three convicts to life imprisonment on humanitarian grounds, Jayalalithaa forgot precedent and procedure. The unilateral decision on releasing the prisoners while giving three days time to the Centre to respond is not justified merely by the fact that most of the convicts have spent over 22 years in prison.
While Article 161 of the Constitution empowers the Governor acting on the advice of the state government to remit the sentences of prisoners, Section 435 of the Criminal Procedure Code specifically mandates the state to consult the Centre on cases investigated by the CBI before remitting or pardoning convicts. The rule book also mandates the setting up of an advisory board at the state level including prison and probation officials to consider remission. A recommendation from this board must be followed by a reference from the state to the Centre even though the recommendation from the Centre is not binding on the state. Such provisions ensure that justice does not become retributive or selective. Unfortunately, all this was thrown to the wind.
With elections nearing, Jayalalithaa’s eagerness to release the prisoners and upstage DMK chief M Karunanidhi has been lost on no one. If this was to become an election issue, Jayalalithaa would not have wanted to be on the wrong side of the debate in Tamil Nadu. She perhaps was taking a leaf out of the Centre’s book. The secret and undignified haste in executing Afzal Guru before the 2013 budget session of Parliament helped the Congress score political points. Ironically, both the AIADMK and DMK governments have opposed the parole pleas of these convicts in the past. The issue also foregrounds the partisan abuse of remission powers. In Kerala, the remission to a former Kerala Congress minister R Balakrishna Pillai, convicted in a corruption case, after 93 days in prison, and to a CPM leader convicted for the murder of a BJP leader and school teacher KT Jayakrishnan in front of his students, provoked outrage in recent years. In each of these cases, the Congress-led and the CPM-led governments favoured their respective prisoners.
The Supreme Court has repeatedly clarified that the punishment for life imprisonment is to be interpreted as life in jail for the duration of the prisoner’s natural life. While Article 161 empowers the state government to consider a prisoner’s claim for remission — and this is usually done after 14 years — certain crimes have to be apprised against the magnitude and gravity of the offence. The Rajiv Gandhi assassination was an act of terror and war against the State, killing the former Prime Minister and 16 others. Releasing the conspirators in this crime by pandering to parochial sentiments without following the due process has grave implications for the administration of justice. In recent times, trial courts have attempted to address the anomalies in the remission process by specifically stating in judgments that convicts in extremely heinous offences should not be considered for remission of life sentences until they have spent 20 or more years in prison. Just as it framed pathbreaking guidelines in January for death row prisoners, the Supreme Court will have to step in and frame guidelines for states to follow before granting remission.