An administrative decision that appeared to be a politically partisan misadventure has now become an opportunity for the judiciary to revisit the law. The Supreme Court has referred to a Constitution Bench the issues arising out of the Tamil Nadu government’s attempt to release the seven life convicts in the Rajiv Gandhi assassination case. The State government’s decision to release them was made a day after the Supreme Court commuted the death sentences of three of them in February on account of the long delay in disposing of their mercy petitions to the President. The State’s announcement touched a raw nerve in the Congress-led Union government, which challenged its legality. A three-judge Bench headed by Chief Justice P. Sathasivam had reserved orders on the scope of the provisions relating to grant of remission and it was expected that an unambiguous verdict would be delivered. However, the Court has found enough reasons to let the matter be decided by a larger Bench, as the existing body of case law does not present a clear picture on several questions. One immediate consequence of the Bench framing seven substantial questions of law is that the matter now seems less of a political and emotive issue than when the attempt was made to fast-track their freedom.

One may wonder whether the Bench could not have referred the matter to a Constitution Bench at an earlier stage itself, or it could not have laid down the law on whether the State government was the appropriate government to invoke the power of remission to convicts who had been prosecuted by the Central Bureau of Investigation but convicted under sections of the Indian Penal Code and some Central laws. The 40-page order of the three-Judge Bench makes it amply clear that several issues had been raised during the arguments and that only a Constitution Bench could provide clear and final answers. The Court has asked for an authoritative pronouncement on whether ‘life imprisonment’ means ‘imprisonment for the rest of one’s life’; and whether it was time that a special category of sentence — imprisonment for life or a term in excess of 14 years without any remission — can be created for cases in which the death penalty is deemed excessive and the regular life term with scope for remission after 14 years seems inadequate; and whether remission is still available to those whose sentences were commuted to life either by the President or the Governor or by the Supreme Court in judicial review. This is a case in which the Court will have to evaluate the competing merits of multiple considerations: adequacy of punishment, right of release after prolonged incarceration and the need to lay down a process for exercising the sovereign power of remission.

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