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Quality of mercy

The power to remit sentences must not be exercised arbitrarily. Court must lay down guidelines

February 20, 2014 3:32:35 am

The Tamil Nadu government’s sudden decision to release the seven convicts in the Rajiv Gandhi assassination case does little to further a reasoned debate on the death penalty, and indeed, the remission of sentences. Only on Tuesday, the Supreme Court had commuted the death sentences of three persons in the group. That the convicts have spent more than two decades in jail — half of that period under the shadow of the noose — arguably provides a humanitarian reason to release them. But by timing its decision ahead of the general elections, the AIADMK government has lent credence to the perception that it was motivated primarily by political calculations.

As opposition leader, J. Jayalalithaa had been fiercely critical of the LTTE, indicating her reluctance to support the mercy pleas of the three convicts. Even as chief minister, she chose to keep a measured distance from the sensitive issue. Her surprising decision comes as opposition parties in the state rally behind the clamour to release the prisoners. The Union government has not been consulted on this sensitive case. Instead, the chief minister has served Delhi with an ultimatum to ratify her decision within three days.

Time and again, the SC has maintained that a sentence of life imprisonment is to be served till “the end of [the sentenced’s] life”. While the CrPC grants state governments the power to remit sentences, there are few checks and balances to prevent its arbitrary exercise. The court has even highlighted the need in some cases to “lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission”. Just as it did with the disposal of mercy petitions, the court must lay down guidelines for remissions if they are to cease being dependent on government whim or largesse.

Without clear norms, how can it be ensured that remissions are also granted to those who are deserving but have no political backing? The discussion on the death penalty must be rescued from wanton politicisation. Union Minister Kapil Sibal has pointed to the BJP’s “silence” on the Rajiv Gandhi assassination case, despite having “bayed for the blood of Afzal Guru”. Courts and governments must together ensure that for grave crimes, the power to both punish and to pardon is exercised in a manner that is not just fair but is also seen to be above reproach.

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