Our prison system must ultimately stay loyal to the theory of reformative justice
Any further delay in ordering the release of the seven convicts in the Rajiv Gandhi assassination case will run the risk of the state falling foul of Article 14 of the Constitution which says that it “shall not deny to any person equality before the law or the equal protection of the laws”.
Legal history of the convicts
Hundreds of prisoners who have been convicted of similar crimes have had their sentences pardoned under Article 161. Equality has never been a notional or abstract concept. In the present case, it must be extended to the convicts regardless of the crime or punishment or any other consideration. In the event of a failure to do so, the constitutional courts are bound to ensure that appropriate protection is accorded to these persons. The legal history of these prisoners has endured its twists and turns. Their mercy petitions were kept undecided for 11 years, between 2000 and 2011, by the highest constitutional offices. In August 2011, the Tamil Nadu Legislative Assembly adopted a resolution recommending commutation of their death sentences.
The Supreme Court, in Union of India v. V. Sriharan (2015), eventually commuted the death sentences to rigorous imprisonment for the remainder of their lives, thereby providing a glimmer of hope for further commutation of sentences under Section 435 of the Code of Criminal Procedure (CrPC). A subsequent reference to a Constitution Bench resulted in a recalibration of the powers vested with the State government under the CrPC in Union of India v. V. Sriharan . Nevertheless, the scope of constitutional powers under Article 161 was not examined by any of these judgments, and the Governor, as the repository of the executive powers of the state, is bound to take a decision “in harmony” with the Council of Ministers, which has already recommended their release.
The division of powers places “public order” under Entry 1 of List II (State List) of the Seventh Schedule of the Constitution. Therefore, the matter must lie within the exclusive remit of the State government. The commutation of sentence vide V. Sriharan v. Union of India (2014) automatically brings the Tamil Nadu Prison Rules into play. Rule 341 states that the Advisory Board of the prison shall deem life imprisonment to be “imprisonment for twenty years” for consideration for premature release or parole. It naturally follows that these prisoners in question must be dealt with under the Rules in the same manner as would any other prisoner serving a sentence in a prison in Tamil Nadu. Any divergence from this principle would be ultra vires on the ground of arbitrariness.
Reforming prisoners
Our prisons, for all their faults, must ultimately stay loyal to the theory of reformative justice. Under this theory, a crime is committed on account of a set of peculiar circumstances, and it is highly probable that these circumstances may never repeat again. 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 complex after serving his sentence.
Prisoners who have served the prescribed sentence of 20 years in Tamil Nadu must be considered for reintegration into our society. Failure to do so will only expose the problems within the prison system, not in its inmates. Oscar Wilde’s famous adage that “every saint has a past, and every sinner has a future” was cited by former Supreme Court Justice V.K. Krishna Iyer, who emphasised that “it is the rule of law to remind both [saints and sinners] of this”. Our high constitutional functionaries who are busy contemplating the way forward in the present case need look no further.
Manuraj Shunmugasundaram is an advocate and spokesperson of the DMK
Pardon is not meant to be exercised without justifiable grounds
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I do not think there can be any compromise on the question of national security or national sovereignty. I do not think the constitutional provision of pardon has to do with anything other than national security and the welfare of a country’s citizens. To that end, the kind of danger that is apprehended from these convicts, and keeping in mind the kind of conspiracy and crime that they have committed, there appears to be no reason to exercise pardon in their favour. Remission has been rejected on grounds that are well known, and include issues of national security and national integrity.
Grounds for pardon
Pardon is not a right. Pardon is an act of discretion exercised in specific circumstances where an individual deserving of clemency is examined in the context of his family background. The dependence of his family on him, a critical emergency or a serious health issue necessitates his release. Pardon is not meant to be exercised without justifiable grounds.
These are political convicts. The Supreme Court has cautioned against their release. Even otherwise, given the large political conspiracy involved in the assassination of Rajiv Gandhi, there does not appear to be any justification for exercising the extraordinary powers of pardon in their case.
Let us understand that the punishment prescribed was death. In India, the death sentence, though present in statute books, is rare. In the rare instances when death sentences have been awarded, they have been strictly followed through. The entire purport of the death sentence is very clear. In the present instance, the death sentence was commuted to life imprisonment, which itself is an act of clemency. That’s the way one would construe it.
Again, after all, when the sentence was converted from death to life, it could have been commuted to a lesser sentence. So, my point is that the power has been exercised, not once but twice — first in commuting from death to life, and then when the question of remission was claimed and denied — on well-laid down parameters. To keep reopening issues would not be a very fair way to look at the system.
Anti-terrorist measures
Security has become a key issue not only locally but globally. It is not only our right but our duty as a part of the nation and the world to deal effectively with any attack or infringement or breach of security, and that too in a conspired, concerted manner. The object of anti-terrorist measures is two-fold. The first is to deter future activity and the second is to prevent terrorist activities. The reason anti-terrorist laws are made, and are to some extent different from regular laws, is that they address acts that destabilise the country.
Pardon can be exercised only in the interests of a nation. In the present case, regarding the limits to which discretion can be exercised, we have reached a conclusion. No ground appears to exist to agitate again on issues which have been deliberated upon by constitutional and statutory authorities.
As told to Anuradha Raman
Pinky Anand is the additional solicitor general of India. Views expressed are personal
Difficult questions of law and policy are involved, which may have to be resolved first
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It is a misconception that upon the completion of 14 years of imprisonment, a life sentence has been served. 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, there is always the power of executive remission, under which the appropriate government reduces part of the sentence for the convict’s good behaviour. Remission is also necessary; otherwise overcrowded prisons will overflow with old and ailing prisoners who have no hope of release.
The government is charged with execution of sentences given by courts and it is well within the government’s executive power to remit any sentence, including a sentence of life imprisonment or of death penalty.
Understanding remission
Life sentences awarded to convicts, including those involved in terror activities, do not automatically imply remission. In normal cases of murder, many State governments have rules which allow for the release of a prisoner sentenced to life imprisonment after 14 years. In each of the cases, there is a specific order of remission. There are, however, cases now where the Supreme Court and the High Courts, instead of imposing a death sentence, rule that the prisoner should remain in prison for the rest of his or her life without any remission. This is a category apart from normal life sentences with specific restrictions on remission that are imposed by the courts.
In the Rajiv Gandhi assassination case, the question is, would it be appropriate to remit the rest of the sentence. This case involves not only the assassination of a former Prime Minister, but also the deaths of several others in the incident, including policemen and bystanders.
It may well be that the family of Rajiv Gandhi may have no objection. But equally, the families of the other victims need to express their preferences. Mercy cannot be extended only because a prominent victim’s family desires it. In any event, it was the intervention of the Gandhi family, among other things, which saw the death sentences being commuted to imprisonment of life. The fact remains that many of those who are currently imprisoned were imprisoned when they were barely in their 20s. They still have a long life ahead of them. The question is, should they be spending their remaining years in prison?
Factors to be considered
A case may be made to say that the perpetrator and the principal conspirator are dead, and that those who were imprisoned were mere pawns, some of whom may not have known the entirety of the enterprise. In these circumstances, to routinely deny the benefit of remission may not always be appropriate.
Another factor that may need to be taken into account is the social impact of a remission order, in the event that it is passed in this case. If people can be freed even after being convicted for the murder of a former Prime Minister in a terror incident, questions could be asked whether India is a soft state on matters of terrorism. A release order in this case may be cited as a precedent in other cases where terrorists and their co-conspirators are serving sentences of imprisonment for life.
There is, therefore, no straight answer. Complicated questions of law and policy are involved, which may have to be resolved before a final call is taken.
As told to Anuradha Raman
Sanjay Hegde is a senior advocate of the Supreme Court
