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In this blogpost, Priyanka Kansara, Student, National Law University, Jodhpur analyses the Supreme Court recent judgment on Rajiv Gandhi Assassination case, while referring and discussing the various governing provisions which were taken into consideration by the Apex Court.

What is the issue involved here?

The Supreme Court of India, on July 2015, came up with a decision allowing state governments to exercise its powers of remission to release life convicts with a rider that this will not apply to cases probed by central agencies like CBI and for those incarcerated under central laws such as TADA. The Five Judge Bench comprising of Chief Justice H. L. Dattu had authoritatively dealt with the issue raised by the smaller bench and held that the State does not have unilateral power to decide remission for convicts of heinous crimes without the consultation with the Centre, in cases ‘where the matter has been investigated by a central agency’.

On the same footpath, The Apex Court came with a new verdict, though similar to that on July 2015, on December 2, 2015, while stating that the state governments cannot remit jail terms of convicts in cases of national importance without the Centre’s approval. The Apex Court further has reserved its verdict on constitutional issues arising out of Tamil Nadu government’s decision to set free the convicts in the Rajiv Gandhi assassination case.

The bench, led by Chief Justice H. L. Dattu, held that cases such as the killing of a former Prime Minister would mean assassinating “national figures of very high status by resorting to diabolic criminal conduct” and that “such a situation should necessarily be taken as the one coming within the category of internal or external aggression”.[1] The Hon’ble former Prime Minister was murdered on 21st May 1991; about 24 years back, which means that the convicted persons have spent about 23 years of their life in the Jail; but the issue which is raised and needs to be decided is that ‘isn’t it a kind of Constitutional aggression’? Our Supreme Law seeks to provide Justice for the victims but is also states that due to some discrepancies the accused should not be victimized.

Legislative Analysis of the issue

Section 432 (1) of the Criminal Procedure Code (hereinafter the Cr.P.C.) states that “When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.” The interpretation of the ‘appropriate Government’ as mentioned under Section 432 of the Cr.P.C., depends upon circumstance and veracity of the case; in cases where the sentence is for an offence, which is related to restricting the personal liberty of any person or impose any liability upon him or his property, the Central Government has the executive power to remit the sentence[2], whereas, in other cases, the State Government within which the offender is sentenced, or the said order is passed has the power to do so[3].

The Apex Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In the case of Mohinder Singh vs. State of Punjab[4], it was held that the decision to grant remission has to be well informed, reasonable and fair to all concerned.[5] In the same case, the Apex Court had held that the appropriate Government under sub-section (1) of Section 432 of the Cr.P.C. cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions.

Power to remit the sentence is the one issue but the second issue, which arises, is that while taking approval from the Central Government, how much liberty will the State have, to decide the matter. The Supreme Court needs to guide as to whether the approval would amount just to consult with the Central Government or concurrence also. The Legislators, on the other hand, have already mentioned as to whom these powers must be conferred and has laid down that the Judiciary has the power to interpret this legislative piece as per its discretion.

Another issue which needs to be settled is the importance of consulting the Central Government and the due weightage which would be given to the same, in matters where a convict has already undergone several numbers of years in the jail as a part of the punishment imposed upon him. Wouldn’t, this time, lag amount to delay in justice? One of the convicts in Rajiv Gandhi assassination case, Nalini Sriharan has already undergone 23 years of imprisonment in the Special Prison for Women, Vellore. She urged before the Supreme Court for premature release along with other co-convicts in the case while challenging Section 435 of the Cr. P.C., which facilitates consultation with the Centre before a State Government, exercises its remission powers to release life-sentenced convicts. The Supreme Court, in the same series, made it clear that there is a need for a categorical response on whether states have any role on the question of remission for life convicts in cases handled by the CBI or any central investigation agencies for that matter.

Where the matter has been investigated by a central agency: An Interpretation-?

Investigating Officers of CBI are authorized to conduct an investigation into the offences notified by Central Government under Section 3 of the Delhi Special Police Establishment Act, 1946 (hereinafter the DSPE Act). The CBI’s power to investigate cases is derived from this Act. While investigation of the said offences may be taken up in the Union Territories upon the orders of the Central Government, a notification from the Central Government is required to be issued under Section 5 of the DSPE Act, 1946 with the consent of the concerned State Government under Section 6 of the said Act to enable investigation to be conducted in the territories of such State. The powers of investigation as granted by the DSPE Act aren’t  different from the powers laid down by the Cr.P.C. 1973. Under Section 156 of the Cr.P.C. 1973, all officers of and above the rank of an officer in charge of a Police Station have statutory authority to investigate cognizable offences. Under Section 157 (1) of Cr.P.C., 1973, such officers are empowered to depute subordinate officers to proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender(s). Officers of CBI of or above the rank of Sub-Inspector are empowered under Section 2(3) of the DSPE Act, 1946 to exercise the powers of the Officer-in-charge of a Police station for the purpose of investigation of any case. Therefore, no independent enquiries/ investigation can be entrusted to Assistant Sub-Inspectors of Police or Head Constables in the CBI.

Now, if the Supreme Court verdict says that the investigations were done by the CBI or any centralized investigation authority, then what would happen to Article 21 of the Constitution? Many cases are investigated by CBI, and thus, the State Government would need Centre’s approval in each and every case, which is investigated by the CBI or any other Centralized authority at par with the CBI. The judgment of the Supreme Court, in the case of Ankush Maruti Shinde and Others vs. State of Maharashtra[6], is relevant here, it was held in this case that “Inasmuch as Article 21 is available to all the persons including convicts and continues till the last breath if they establish and prove the supervening circumstances, viz., undue delay in disposal of mercy petitions, undoubtedly, this Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life.” It is a well-settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death row prisoners, till the very last breath of their lives.[7] The distinction of the convicts insofar as it relates to the exercise of executive powers under Sections 432 and 433 of the Code is concerned, cannot be termed to be either arbitrary or discriminatory being violative of Article 14 of the Constitution.

Specific Overview-

The matter is simple, but the procedure is complex; the complexity is in the systematic implementation of the procedure established by the Legislation; procedure established by the Constitution i.e. the Rule of law. The Rule of Law principle enshrines for the Justice. Though the Supreme Court’s verdict on this matter can be Constitutional and hence sustainable but, the Hon’ble Apex Court should also take into account other aspects of the issue as well rather than merely looking into the gravity of the crime, so as to enabling itself to deliver Justice to the people concerned.

[1] TN can’t release Rajiv killers without consulting Centre, says Supreme Court, Utkarsh Anand, The Indian Express, December 3, 2015, http://indianexpress.com/article/india/india-news-india/convicts-in-rajiv-gandhi-assassination-case-will-remain-behind-bars-sc-rules/ (accessed on December 5, 2015).

[2]s. 432 (7) (a), Criminal Procedure Code 1973 (Act No. 2 of 1974), 25th January 1974, (hereinafter the CrPC 1973).

[3] s. 432 (7) (b), the CrPC, 1973.

[4] (2013) 3 SCC 294

[5] Ibid

[6] AIR 2009 SC 2609.

[7] Shatrughan Chauhan v. Union of India, a (2014) 3 SCC 1.

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