A group of public-spirited persons have challenged in the Supreme Court the power vested with the State governments to grant remission to prisoners under the Code of Criminal Procedure (Cr.PC).
In a writ petition, S. Abbas, John Joseph, Americai V. Narayanan, R. Mala, M. Samuvel Diraviyam and K. Ramasugandam challenged the constitutional validity and applicability of the power to pardon, reprieve, remit, suspend or commute sentences under Sections 432, 433 and 435 and the limitation of Section 433A of the Cr.PC.
The petition said they were constrained to move the court in the backdrop of the Tamil Nadu government’s order to release seven life convicts in the Rajiv Gandhi assassination case. While exercising the power of clemency, the State must keep in mind not only the interests of the convicts but also the effect of its decision on the victims’ families and society and the precedent it set.
“In the present case, the State government had overlooked the above proposition for narrow political gains and in one stroke, ordered the release of Rajiv assassins. The attitude of the State government is against the constitutional value and national spirit and for narrow political consideration,” the petitioners said.
They argued that since Article 72 gave the power of clemency to the President and Article 161 to the Governor, the power of remission vested with the State governments would override the Constitution’s mandate.
They pleaded that Sections 432 to 435 of the Cr.P.C. be declared ultra vires the Constitution as they could not coexist with Articles 72 and 161. Once the President or the Governor rejected a mercy petition, the court should not interfere in such powers, except by sending back the petition to those constitutional functionaries for reconsideration. They said that since the petition raised important questions of law , it should be referred to a Constitution Bench.
