Playing politics with law of land

Playing politics with law of land:

Rajiv Gandhi’s assassination is well known and it is not required to go into the same. It would be sufficient to say that it was a terrorist attack carried out by LTTE and their sympathizers. The accused were sentenced to death and their mercy pleas were also rejected.

It is also true that Priyanka Gandhi had visited one lady convict in jail and expressed sympathy by pardoning them.

As I have said many times, that Indian Government is guilty of confusing action against the terrorist as action against the community to which the terrorists belong. In almost all the terror cases, the death sentences awarded/confirmed by the Supreme Court are not carried out even after rejection of mercy petition. Mercy petitions are also kept pending with the President or with the Home Ministry. The deplorable attitude and mentality shown by Mrs. Pratibha Patil, the ex-President while dealing with the mercy petitions also need no special mention.

Assassins of Rajiv Gandhi, the then PM of India as well as Afzal Guru who attacked the seat of governance of India were awarded death sentences. The mercy petitions were also disposed off or were kept pending for reasons best known to the politicians at the helm of the affairs. It has also come in the news papers that in case of Afzal Guru, there were specific instructions from Home Ministry of UPA to Sheila Dixit Government to keep the file of Afzal Guru pending. However, Afzal Guru was hanged only because of the public pressure created after the hanging of Ajmal Kasab. Otherwise, Afzal Guru would have also got the benefit of the recent SC judgment.    

The recent SC judgment reducing the death sentence to life imprisonment is based on law of the land. One cannot view that judgment with emotions. If emotions are allowed to play role, the sundry politicians who are simply bothered about their vote bank would run riot with the legal framework by sabotaging the legal system in such a way that there is prima facie no violation of law and the convict would eventually get the benefit of the lapses of the Government. Whether the lapses are deliberate or not is another topic for discussion. However, with the benefit of hindsight, one cannot be faulted if he/she were to infer that the lapses are deliberate in almost all the cases – from Bhullar to Rajiv Gandhi killers to Afzal Guru to so many others.

Coming back to the present brouhaha on the move made by Jayalalitha, even though she may be accused of playing politics, she cannot be faulted in law. I am not endorsing her action. But we cannot also ignore the Constitution.

After the Supreme Court’s verdict, the state government is obligated under the law to consider the convict’s plea for remission of their sentence. However, there are two ways of granting remission.

Under the CrPC, the state cabinet can resolve to exercise the power of remission vested in it under Section 432. However, this power is subjected to certain conditions. If a convict has been prosecuted by an agency empowered to make investigation into an offence under any Central Act, prior consultation with the Centre is necessary. The Central government will also have a say in cases where conviction has been brought about under any law upon which the executive power of the Union extends.

The TN government, in the present case, is legally bound to consult the Centre since the assassination case was investigated by the CBI – a central agency, and also because convicts were held guilty of charges under laws such as the Arms Act and Explosive Substances Act, to which Central government power extended.

Therefore, if the Centre now decides to sit over the Tamil Nadu government’s proposal or to reject it, there is a way out. Article 161 of the constitution gives the Governor of the State the power to grant pardons and to suspend, remit or commute sentences. Although the convicts’ mercy petitions have already been rejected once by the governor, they can now move for a different relief: remission of sentence in view of the changed circumstances.

There are various judicial pronouncements besides the 41st Law Commission’s report maintaining that the governor is bound to act on the aid and advice of the council of ministers, unless he acts in his own discretion under the exceptions provided for in the Constitution.

Once the Governor receives the convicts’ plea for remission, he will have to send it to the State cabinet and subsequently act on it. The will of the State cabinet is already manifest with its recommendation to the Centre and hence it seems Jayalalitha will prevail over paralyzed Center. Senior legal officers of the government added that the three-day deadline was fixed by the Chief Minister to avoid any procedural delay. Consequently, the convicts can walk out if the state government desired.

Tamil Nadu’s Advocate General A L Somayyaji said that while the Centre has to be consulted, it is not mandatory to get its consent before taking a decision. According to Retired Madras High Court Justice K Chandru, the TN state government is within its rights to remit the sentence. He further said “It has already been made clear that consult does not mean consent. Which means even if the Centre has an objection, the state government can go ahead and release the prisoner”.

Retired Supreme Court justice K T Thomas also agreed the state was within its limits to consider remission. “There is no condition other than perhaps goodwill while considering a case. The only question is whether the power is being misused, like freeing a prisoner after just a few years into the sentence. Here, they all have undergone so many years of imprisonment including three who till yesterday were on death row. I personally think that is a long enough punishment for these persons who had no personal enmity against Rajiv and were only obeying orders given by their leadership,” said Thomas, who was on the bench which confirmed the death penalty for A G Perarivalan, Murugan and Santhan.

Kapil Sibal’s reaction is amusing, to say the least. He has reacted as - “I am deeply disturbed at the undue haste shown by the Tamil Nadu government in trying to release these convicts. My understanding of law is that life sentence means that it is sentenced for life. We will examine all these issues closely.” Expressing displeasure over the Jayalalitha government’s move and calling it a “disturbing trend,” Kapil Sibal said, “how can they give relief just like that? One has to look at the nature and intent of the crime. These were terrorists, who had carried out a planned attack and assassinated the former prime minister. And who knows the extent of external involvement.”

Well, in that case, what are the finding of the Investigating Agency, CBI, that works as a tool of Congress Government about the extent of ‘external involvement’ after 23 years of investigation, assuming the investigation was really going on as stated by Kapil Sibal!?

If Jayalalitha is playing to Tamil gallery, the Congress also played to the same gallery – thanks to DMK.

The whole issue is an absolute mess created by the politicians of all ilk with law of land in a sense they create a situation where the convict gets the benefit that he never deserved.