SC ends hope for release of Rajiv killers

In a verdict that may dampen the hopes for release of killers of former Prime Minister Rajiv Gandhi, the Supreme Court today ruled the Centre has "primacy" over states' right to grant remission.
It also said the state governments must get "concurrence" of the Union government before freeing convicts in certain cases.
A five-judge bench, which settled questions arising out of Tamil Nadu government's decision to free killers of Gandhi, dealt elaborately with the situations where the Centre will prevail over states' decision to grant remission which included cases where their powers are coextensive, where trial has been held under central laws or conducted by agencies like CBI, or when they pertain to death penalty.

The Constitution bench headed by Chief Justice H L Dattu, who demitted office today, also said that states cannot exercise "suo motu" the power to grant remission without any specific plea from the convicts.
It took a cue from a 1993 judgement, which had brought about the collegium system of appointment of judges, where it was held that "consultation" with the CJI would necessarily mean "concurrence".
"Having regard to the principles culled out in paragraph ..., it is imperative that it is always safe and appropriate to hold that in those situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of 'Consultation' in reality be held as the requirement of 'Concurrence'," the court said in its 258 page verdict.

CJI Dattu, Justices Kalifulla and Ghosh upheld the

principles enunciated in the Swamy Shraddananda judgement which had said that "a special category of sentence may be made for very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of 14 years" and they can put beyond the power of remission.
Justices A M Sapre and Lalit, however, differed and said, "In our view, it would not be open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under Section 433A of CrPC".

The bench also ordered that the case relating to the grant of remission to the killers of Gandhi be sent to a three-judge bench to deal with it in pursuance of guidelines laid down in the judgement.
"Now that we have answered the Reference in the matters, the matters will now be listed before an appropriate three learned Judges' Bench for appropriate orders and directions in the light of the majority Judgement of this Court," the Chief Justice said.
While dealing with the question of right to claim remission, the bench said, "Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of life of the convict.

"The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court," the order said.
It, however, qualified this right by saying that the "ratio laid down in the Swamy Shraddananda case" put a cap on the states' power to grant remission in certain cases.
"The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor...

"It is held that the powers under Sections 432 and 433 (power grant remission) to are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government," it said.