A five-judge Constitution Bench of the Supreme Court will decide the fate of the seven convicts in the Rajiv Gandhi assassination case.
A three-judge Bench headed by Chief Justice P. Sathasivam, while referring the matter to the larger Bench, took into consideration the Centre’s submissions that the Tamil Nadu government’s decision to remit the sentence of the seven convicts was “illegal and without jurisdiction.”
“The State government is not the appropriate government in the present case and it has no role to play in it at any stage,” the Centre said. The State, however, maintained that the authority to exercise the power of remission in such special cases vested with the “appropriate government” even after the court commuted the death sentence to life imprisonment. The order did not bar any further exercise of the commutation/remission power by the executive under the Constitution or under the Criminal Procedure Code (Cr.PC).
The Bench framed seven questions for the Constitution Bench:
Does imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code mean imprisonment for the rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission? Can a special category of sentence be made for the very few cases where the death penalty might be substituted with imprisonment for life or imprisonment for a term in excess of 14 years and can that category be put beyond the application of remission?
Is the ‘appropriate government’ permitted to exercise the power of remission under Section 432/433 of the Cr.PC after parallel power has been exercised by the President under Article 72 or by the Governor under Article 161 or by this court in its constitutional power under Article 32 as in this case? Does Section 432(7) of the Cr.PC clearly give primacy to the executive power of the Union and exclude the executive power of the State where the power of the Union is co-extensive? Which has primacy, the Union or the State, over the subject matter in List III of the Seventh Schedule of the Constitution for exercise of the power of remission? Can there be two appropriate governments in a given case under Section 432(7) of the Cr.PC? Is suo motu exercise of the power of remission under Section 432(1) permissible? If, yes, is the procedure prescribed in the same Section mandatory or not? Does the term “consultation” stipulated in Section 435(1) of Cr.PC imply concurrence?
The Bench said: “All the issues raised in the given case are of the utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system.”
It directed that the matter be listed before the Constitution Bench within three months.