- The Tamil Nadu government has recommended release of all seven convicts under Article 161 of the Constitution in Rajiv Gandhi assassination case.
Article 161: This gives the Governor power to pardon, suspend, remit or commute sentences of people who have been proved guilty in court in certain cases. His decision, however, can be challenged in court.
- State Cabinet recommended that the convicts, who have served 27 years in prison, be released under Article 161 of the Constitution.
- Any delay in the release of convict question the validity of Article 14 which says state shall not deny to any person equality before the law or the equal protection of the laws”
- Legal history of the Rajiv Gandhi assassination case:
- Mercy petitions were kept undecided for 11 years in Rajiv Gandhi assassination case.
- In August 2011, the Tamil Nadu Assembly recommended commutation of their death sentences.
- Supreme Court, in Union of India V. Sriharan (2015), commuted the death sentences to rigorous imprisonment for the remainder of their lives.
- However due to debate over the release of convict, author has collected different views from eminent persons whether the release of convict is justified under Article 161.
- Manuraj Shunmugasundaram an advocate, said in favor of release:
Ground for Pardoning – Reforming Prisoners:
- In past, criminals have been released who were convicted of same crime, under Article 161.
- The division of powers places “public order” under List II (State List) of the Seventh Schedule of the Constitution. Therefore, the matter must lie within the exclusive remit of the State government.
- And since the State Government has already adopted resolution to commute death sentence, it must be accepted.
- Prisoners already have served the prescribed sentence of 20 years in jail and be considered for reintegration into our society.
- Prisons must follow the “Theory of Reformative Justice”
- Therefore, the focus of our prison system should be in bringing about reform in the moral character of each prisoner and enabling him to restart his life outside the jail.
- Another view according to Pinky Anand, a senior Advocate says, pardoning power is not meant to be exercised without Justifiable Grounds.
Ground for Denying release of Prisoners:
- Such crime can pose a serious threat on National Security and National Emergency.
- This kind of conspiracy and crime cannot be a ground to exercise pardon.
- Pardon can be exercised only in the interests of a nation.
- Ground for pardoning need to be examined in the context of serious health issue, family background and dependence of his family etc.
- No need to exercise extraordinary power of pardon when large political conspiracy is involved.
- The death sentences are awarded very rarely and when it is, as in present case, it should be followed strictly.
- It is our right and duty to prevent terrorist activities and deter future activity.
- Sanjay Hegde, a senior SC advocate, says it is very complicated.
- The Supreme Court, in Gopal Vinayak Godse v. the State of Maharashtra (1961), ruled that a sentence of imprisonment for life means imprisonment for the rest of one’s natural life
- However, the government over the period of time, used the Executive Power to reduce the period of sentencing for convict’s good behavior.
- Remission is also necessary to avoid overcrowding of Jails on valid ground.
- Even though family of Rajiv Gandhi has no objection, but the families of the other victims who died in the incident need to be consulted.
- Remission should not be denied when real perpetrator and the principal conspirator behind the conspiracy are dead, and that those who were imprisoned were mere pawns.
- The implications of the decision on the country itself should be considered, such as, whether India is a soft state on matters of terrorism.