Terming it as an issue without precedent for the judiciary, the Supreme Court Friday referred to a constitution bench to decide whether the Centre or the Tamil Nadu government had the authority to release the seven convicts in the Rajiv Gandhi assassination case.
A three-judge bench led by Chief Justice P Sathasivam held that a larger bench must pronounce an “authoritative” ruling in view of the the wider interpretation of the provisions of the constitution and the Criminal Procedure Code involved in the matter. A constitution bench comprises at least five judges of the apex court.
“All the issues raised in the given case are of utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system,” said the bench, also comprising Justices Ranjan Gogoi and N V Ramana.
Deciding a legal challenge by the Centre against Chief Minister J Jayalalilthaa’s cabinet decision to remit the remaining jail terms of the convicts, the bench added: “The issue of such a nature has been raised for the first time in this court, which has wide ramification in determining the scope of application of power of remission by the executives both at the Centre and the state.”
It framed seven issues to be determined by the larger bench and directed that the matter be placed before it within three months. The interim order in February, staying the release of the convicts after the resolution of the Tamil Nadu government, will continue until a final decision.
The questions framed by the bench included whether further relief by remission of jail term could at all be given to convicts whose death sentences have been commuted to life term, either by the executive orders of the President or the governor, or by a constitutional court.
The bench also asked the constitution bench to consider if a “special category” of sentence can be created for such commutation cases under which the jail term is set at more than 14 years and cannot be remitted by the central or state government.
These questions gain significance since the SC had earlier commuted the death sentence of three convicts – Murugan, Santhan and Perarivalan – to life term after noting that there was an inexplicable delay on the part of the President in deciding their mercy petitions.
Another question asked the constitution bench whether the Centre or the state governments would be the “appropriate government” to decide on remission when the crime committed falls in both the union and the state lists.
The constitution bench has also been asked to decide if there can be instances where both the central and state governments are the “appropriate government” and if so, which one will have the primacy in decision-making.
Since the Tamil Nadu government had proceeded with the remission on its own in the present case, the court requested the larger bench to also adjudicate upon whether the power of remission can be used “suo motu” and when it is exercised in this manner, whether the state government was bound by the opinion of the Centre after the consultation process.
The Centre’s petition had challenged the legality of the Tamil Nadu government’s resolution for remitting their jail terms and the consequent communication sent to the Ministry of Home Affairs for consultation. It claimed the “appropriate government” under the CrPC was the central government in this case and hence it had the sole power of remission.
The Centre also said that the Tamil Nadu government’s decision was in derogation of rights of the victims, who lost their kin in the blast that killed 18 people.
However, the Tamil Nadu government claimed it was well within its jurisdiction and powers under the Criminal Procedure Code to decide on the remission and that the central government’s view was sought on the contentious resolution as a “customary process”.
It also questioned the maintainability of the Centre’s petition, contending it was supposed to furnish its opinion on the state’s resolution instead of rushing to the Supreme Court and filing a writ petition.
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