Power to Pardon:
Sentencing a person after fair trial is a judicial function. Execution of sentence against the person is an executive function. However, execution of sentence should in no way interfere with the order of conviction.
Secs. 432, 433 CrPC deals about the grant of remission/to commute sentence by the appropriate government and Art. 74 and 161 of Constitution of India enumerates the pardoning power of the Executive.
The “appropriate government” – either central or state government based on the law under which the accused has been convicted, can act only upon the application by the prisoner and no suo motto power is conferred. In respect of state government its power is further qualified with Sec.435, i.e. concurrence of the Central government is necessary in respect of offence investigated by central agency or affects the property of central government or done by person in the service of central government.
The above statutory power of remission is independent of the Constitutional remedies of pardon, suspend etc., under Arts. 74 and 161, where the power is conferred upon the Executive. No doubt, the executive power under Arts.72 and 161 can be exercised upon the advice of the concerned Minister i.e., Home Affairs. Various factors with merits, reasons of the state, prevailing occasions determines the exercise of such power which varies from case to case and no “guideline” can be laid down.
Grant of Pardon to Rajiv Gandhi Assassin’s Convicts
History
Former Prime Minister Mr.Rajiv Gandhi was assassinated in an election rally of his Congress party at Sriperumbudur and nearly 43 persons were seriously injured. Accused were framed charges for offences under Section 302 and other provisions of the Indian Penal Code, Explosive Substance Act, Arms Act, Passport Act, Foreigners Act and Wireless Telegraphy Act. By judgment dated 28.01.1998 the learned trial judge convicted and awarded sentence of death and the same was also confirmed by the Honourable Supreme Court of India on 11.05.1999. The Mercy Petition submitted to the Governor of Tamil Nadu was also rejected on 17.10.1999. In pursuant to the order dated 25.11.1999 by Hon’ble High Court, Madras, by communication dated 24.04.2000 the Governor of Tamil Nadu commuted the death sentence imposed into that of imprisonment for life and some of them were released under Art.161. S. Nalini, Murugan, Santhan, A.G. Perarivalan, Jayakumar, Robert Payas and P. Ravichandran are the convicts undergoing the sentence.
Timeline of this politico-socio-legal issue in Pardoning the convicts in this.
By letter dated 19.02.2014, the Government of Tamilnadu informed the Central Government about its proposal to remit the sentence of these convicts and this was challenged by the Central Government before the Hon’ble Supreme Court and the case is still pending. Upon reference the Constitution Bench has answered that the imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for the rest of the life of the convict and the right to claim remission, commutation, reprieve, etc. as provided under Article 72 or Article 161 of the Constitution will always be available being constitutional remedies untouched by the Court and the issue under challenge is sub-judice.
On 09.09.2018 the Council of Ministers have tendered advice to the Governor for pre-mature release of these 7 persons. In January 2021, the Hon’ble Governor of Tamilnadu has returned the request of the convicts Perarivalan on the ground that President is the competent authority to decide.
On 20.05.2021 DMK M.P. Mr. T.R. Baalu has handed over the letter written by Hon’ble Chief Minister of Tamilnadu urging Hon’ble President Shri. Ram Nath Kovind to release all the seven convicts.
Will the legal solution imminent amidst political game?
The political and other reactions/subscription of views to this case is not a surprise. In November 2013, retired CBI officer Thiagarajan revealed that he had altered Perarivalan’s statement in custody to “qualify it as a confession statement.” Thiagarajan had later submitted the same as an affidavit in SC.
In a letter addressing Sonia Gandhi in 2017, Justice K T Thomas too had demanded remission for all seven convicts. Writing as one of the three judges who delivered verdicts in the case, he requested magnanimity from her side too.
Incarceration of these 7 persons is pursuant to due trial conducted by the designated Court which was also confirmed by the Honourable Supreme Court. While so, other considerations are not legally relevant and political considerations cannot be the basis for granting pardon. While Rajiv Gandhi’s family has maintained they are not against the convicts being freed, equal consideration to the views of the relatives of 17 other people who were killed along with the former prime minister should also be given, if taken for. Ironically the Congress leader and Former Chief Minister of Puducherry V. Narayanasamy has represented that the congress will oppose the release of convicts. More so, the story of “larger conspiracy” angle based on Justice M.C. Jain Commission of Enquiry has resulted in setting up a Multi-Disciplinary Monitoring Agency.
In these circumstances since the writ petition with respect to 19.02.2014 recommendation of Government of Tamilnadu is pending before the Hon’ble Supreme Court and “larger conspiracy” investigation is still probed, any decision by the President would set a bad precedent as these convicts include foreign nationals also. Forwarding letter to President would not even be a legal compliance but only political. If really the state government is interested in finding the solution it lies on the early disposal pending writ petition.
D.BASKAR, ADVOCATE, HIGH COURT
