New Delhi: The Supreme Court on Thursday dismissed as infructuous a writ petition filed in 2014 by six persons, including two victims in the Rajiv Gandhi assassination incident, challenging the power vested in the state government under the Cr.P.C. to grant remission to seven life convicts, for their premature release.
A three judge Bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna, after hearing counsel Sivabalamurugan and Solicitor General Tushar Mehta said, “All aspects were covered in the earlier constitution bench verdict in the case and therefore nothing survives in the case”.
The petitioners S.Abbas, John Joseph, America V. Narayanan, Ms R.Mala, M.Samuvel Diraviyam and K. Ramasugandam in a writ petition challenged the constitutional validity and applicability of power of pardons, reprieves, respites or remission of punishment or to suspend, remit or commutation of the sentence under, Sections 432, 433, 435 and the limitation of section 433A of the Cr.P.C.
The petition they were constrained to move the apex court in the backdrop of the action of Tamil Nadu government in ordering the release of seven life convicts in the Rajiv Gandhi assassination case. They said while exercising the Clemency power, the State must keep in mind not only the interests of the convict, but also the effect of its decision on the family of the victims, the society as a whole and the precedent it would set for the future.
They said, “in the present case the state government had overlooked the above proposition for narrow political gain and in one stroke ordered for release of Rajiv assassins. The attitude of the state government is against the constitutional value and national spirit and for narrow political consideration.”
They argued that once the clemency power had been exercised by the President under Article 72 or by the Governor under Article 161 of the Constitution, the power of remission could not be vested on the State government under Cr.P.C. by way of an appellate power for adjudication as such provisions would override the mandate of the Constitution.
They sought a declaration that Sections 432 to 435 of the Cr.P.C. as ultra virus Constitution and could not co-exist with the power of pardons, reprieves, respites or remission of punishment or to suspend, remit or commutation provided under Article 72 and 161 of the Constitution.
During the pendency of this petition, a five judge Constitution bench in December 2015 held that a Governor could exercise his clemency power notwithstanding the rejection of earlier petitions by the President or the Governor. In the light of this decision, the State had recommended the release of the seven life convicts and this is pending with the Tamil Nadu Governor. The dismissal of the present writ petition will have no bearing on the pendency of the recommendation with the Governor who is free to exercise his powers vested under the Constitution.