If the Chief Justice of India, as the head of the judiciary, is the best person to decide who should be appointed a judge, the State government and its officials are the most competent authority to decide whether a life-term convict deserves to be granted remission.
This was the rather unorthodox line of argument adopted by the Tamil Nadu government in a petition filed in the Supreme Court on Wednesday for a review of a Constitution Bench verdict laying down the law that the Centre and not the State government had “primacy” in deciding whether the seven killers of the former Prime Minister, Rajiv Gandhi, should be granted remission from serving a life time behind bars.
The State government’s push for a review by drawing a parallel between its powers of remission and the highest judiciary’s process of appointing judges is reinforced by the fact that the Supreme Court had recently upheld the Collegium system by striking down the Centre’s National Judicial Appointments Commission laws.
“This court in the Second Judges case held that primacy is to be given to the Chief Justice of India not only because he is the head of the Indian judiciary but because he would be the most appropriate person to have a final say in appointment of judges, being and having the necessary knowledge as to the need of the chair and having proximate access to the information relating to the potential candidates,” the State government’s review petition, filed by advocate Yogesh Kanna, submitted.
“In the case of remitting the sentence of the convicts, it is the State government which is the executive authority more competent to decide the outcome of such release/remission of convicted persons because of its proximity to the facts and circumstances relating to the case pertaining to the conviction of the convicts,” the State said, challenging the “logic” of the Constitution Bench judgment.
The judgment, pronounced on December 3, 2015, had virtually closed the seven convicts’ chances for a premature release.
In his judgment for the majority of the Bench including the then Chief Justice of India H.L. Dattu, Justice F.M.I. Kalifulla, who retired last week, said the word ‘consultation’ in Section 435 of the Criminal Procedure Code, dealing with remission, actually meant ‘concurrence.’ In short, the court had ruled that consultation with the Centre in such heinous cases should not be an “empty formality” as national interest is at stake.
The December judgment had held that the Centre, in national interest, can wield its executive power like a “bull in a china shop” while deciding cases of remission of convicts whose crimes shook the nation like the murder of a former prime minister.
In its review petition, the State government argued that it need only to consult the Centre on the question of granting remission to life term convicts like in the case of Rajiv’s killers. It contended that the term ‘consultation’ used in Section 435 did not imply getting the concurrence of the Centre as decided by the Constitution Bench on December 3, 2015.
The December 3 judgment had held that State governments cannot unilaterally decide on the grant of remission to life term convicts in cases investigated by central agencies like the CBI.
Further, the review petition asked how the Centre could have moved the Supreme Court under Article 32, which is reserved only for citizens to protect their fundamental rights.
The Centre had contended that no further mercy should be shown to the convicts in the 1991 assassination case. The Supreme Court had on February 20, 2014 stayed the Tamil Nadu government’s decision to release Murugan, Santhan and Arivu whose death sentences were commuted to life term by it on February 18. Later, it had also stayed the four other convicts Nalini, Robert Pious, Jayakumar and Ravichandran.