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ISSN (Online) - 2349-8846

Playing Politics

Decision to Release ’s Assassins ABHISHEK SUDHIR

Vol. 49, Issue No. 14, 05 Apr, 2014

Abhishek Sudhir ([email protected]) is with the Jindal Global Law School, O P Jindal Global University, Sonipat.

Outraged by Jayalalithaa’s decision to release former Prime Minister Rajiv Gandhi’s assassins on the eve of general elections, the Congress-led central government has challenged the order in the . Looking beyond political reasons underlying the Tamil Nadu government’s decision, the key question to ask is whether the has the power to release the convicts without the approval of the central government.

On the eve of the general elections, Chief Minister J Jayalalithaa, mindful of sentiments in Tamil Nadu, laid down the gauntlet before the central government: "Whether the Centre sends its reply or not, accepts or rejects (the cabinet decision), we are not concerned and we will set free the convicts. That's quite certain" (Mariappan: 2014). The convicts she is referring to are the seven individuals currently incarcerated for their role in former Prime Minister Rajiv Gandhi’s assassination. The Solicitor General of immediately approached the Supreme Court of India (SC), which in turn ordered the Tamil Nadu government to maintain the status quo i.e. not release the prisoners (Mahapatra: 2014).

In the coming days, the Supreme Court will rule on a petition filed by the centre challenging the order of the Tamil Nadu government on the ground that “the Government is not competent to exercise the power to remit in the case of the seven convicts and only the Central Government has the power to grant remission of sentence”[1]. One way or the other, the SC’s ruling will stir-up a political maelstrom; the SC’s task is made even harder as there are a plethora of conflicting legal provisions that they must reconcile in making their ruling.

The “Appropriate” Government

The first hurdle that the Tamil Nadu government will have to clear is Section 433A of the Code of Criminal Procedure (CrPC): this section prescribes a minimum period of imprisonment of fourteen years for those persons who have been convicted of an offence for which death is one of the possible punishments. This hurdle is easily cleared; all the seven convicts having served upwards of fourteen years are, by virtue of Section 432 of the CrPC, eligible to be considered for release by the “appropriate government”. ISSN (Online) - 2349-8846

Under Section 432(7) of the CrPC, the appropriate government is the central government in cases where the sentence is for an offence against “any law relating to a matter to which the executive power of the union extends”. In all other cases, the government of the state in which the sentence is passed is the “appropriate” government. Thus, the fate of the seven convicts rests on whether or not the SC chooses to accept the centre’s contention that it is the central, and not the Tamil Nadu government that is the “appropriate Government”.

The of the Seventh Schedule of the Constitution lists matters falling within the exclusive legislative competence of the union; the lists matters falling within the exclusive legislative competence of the states; and the lists matters to which the executive power of the both the union and the states extends. Thus, in determining whether it is the state or the central government which has the power to remit the prisoners’ sentences, the SC will have to refer to the union, state and concurrent lists.

The approach to be followed will be similar to the one adopted by the SC in the case of G V Ramanaiah where the accused was convicted of counterfeiting currency notes under sections 489A-489D of the IPC:

The is a compilation of penal laws, providing for offences relating to a variety of matters, which are referable to the various Entries in the different Lists of the 7th Schedule of the Constitution. Many of the offences in the Penal Code relate to matters which are specifically covered by the Entries in the Union List… offences relating to Currency-Notes and Bank-Notes…are referable to Entries Nos. 4, 72, 36, 50 and 36, respectively, of (the Union List)…(this) shows beyond all manner of doubt that in respect of offences failing under sections 489-A to 489-D, only the Central Government is competent to suspend or remit the sentence of a convict.[2]

As all seven convicts were convicted of “murder” and/or “criminal conspiracy to commit murder” under the IPC[3], the SC will have to examine the limits of the executive powers of the Union and the states as far as the subject matter of “murder” is concerned. Entry 1 of the concurrent list clearly states that “criminal law including all matters included in the Indian Penal Code” fall within the executive power of both the union and the states. However, Entry 1 also clarifies that if offences under the IPC relate to matters mentioned in the union or state list, then the executive power is not concurrent. As the offence does not correspond to any Entry in the union list, the power to remit a sentence for “murder” can be exercised by the state government within whose jurisdiction the sentence was passed viz., the government of Tamil Nadu .

After “Consultation” with the Centre ISSN (Online) - 2349-8846

Section 435(1) of the CrPC clearly states that if the offence was investigated by an agency such as the Central Bureau of Investigation (CBI) constituted under the Special Police Establishment (DSPE) Act, the power of remission can only be exercised by the state government “after consultation with the Central Government”. Hence, the Tamil Nadu government, which is the “appropriate” government to remit the sentences of the seven convicts under the IPC, can exercise this power only after “consultation” with the central government as the case was investigated by the CBI.

However, the waters are muddied as the convicts were also sentenced to imprisonment for life under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act (TADA)[4]. Terrorism is “a matter over which the executive power of the Union extends” as it corresponds to Entry 1 (Defence of India and every part thereof) of the union list. As a result, the “appropriate” government for remitting the sentences under TADA is the central government.

Some of the convicts were also sentenced under the Foreigners Act, the Arms Act, the Wireless and Telegraphy Act, the Passport Act and the Explosive Substances Act[5]. All of these acts relate to various Entries in the union list such as arms, explosives, passports and admission into or expulsion from India. Therefore, there is a clear conflict as the Tamil Nadu government has the power to remit the sentences imposed under the IPC, whereas the centre has the power to remit the sentences imposed under TADA and the aforementioned Central Acts.

As a result of this conflict, the question that arises for consideration is whether the Tamil Nadu government is bound by the advice tendered by the centre. In other words, does “consultation with the central government” mean “consent of the central government”? The answer to this question is to be found in Section 435(2) of the CrPC: the order of remission of sentences under the IPC passed by the Tamil Nadu government shall have effect only if the central government also passes an order remitting the sentences under TADA and the other central acts.

When Jayalalithaa announced the decision to release Rajiv Gandhi’s assassins, it sparked off a nationwide debate on several questions: Should those responsible for the death of a Prime Minister be released? Should the power to remit the sentences of the convicts be exercised for purely political reasons? If the purpose of the criminal justice system is rehabilitation and not retribution, what is wrong in releasing the seven convicts? And yet, the most critical question went unasked: Does Jayalalithaa have the power to release the convicts without the approval of the central government? The answer is a clear and resounding “no”.

Notes: ISSN (Online) - 2349-8846

[1] Union of India v. V. Sriharan, Writ Petition (Crl.) No. 48 of 2014.

[2] G. V. Ramanaiah vs The Superintendent Of Central Jail, Rajahmundry, 1974 SCR (1) 852 at 855.

[3] S. Shanmugadivelu, S. Nalini & Ors. vs State By D.S.P., Cbi, Sit, Chennai, available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=16831, accessed on 31 March 2014.

[4] Ibid.

[5] Ibid.

References:

Mahapatra, Dhananjay (2014): “SC stays TN Govt's move to free 3 of Rajiv Gandhi's killers”, Times of India, 20 February, available at http://timesofindia.indiatimes.com/india/SC-stays-TN-govts-move-to-free-3-of-Rajiv-Gandhis- killers/articleshow/30714487.cms, accessed on 31 March 2014.

Mariappan, Julie (2014): “Jayalalithaa plays politics, declares Rajiv Gandhi assassins will be freed”, Times of India, 20 February, available at http://timesofindia.indiatimes.com/india/Jayalalithaa-plays-politics-declares-Rajiv-Gandhi-ass assins-will-be-freed/articleshow/30692858.cms, accessed on 31 March 2014.