NEW DELHI: The Supreme Court today reserved its verdict on constitutional issues arising out of Tamil Nadu government's decision to set free the convicts in the Rajiv Gandhi assassination case, including the power of states to remit sentences.
A five-judge Constitution bench headed by Chief Justice H L Dattu would authoritatively deal with questions raised by the smaller bench while staying the state government's decision to set free seven convicts in the sensational case.
The bench, also comprising justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, heard for eleven days the arguments advanced by Solicitor General Ranjit Kumar, who appeared for the Centre, and others including senior advocates Ram Jethmalani and Rakesh Dwivedi, representing V Sriharan alias Murugan, one of the seven convicts, and Tamil Nadu government respectively.
The court would be dealing with seven issues framed by the smaller bench on the scope of executives' power of remission.
It would decide whether state governments also have power of remission in cases where central agencies like CBI are the prosecutor.
"The issue of such a nature has been raised for the first time in this court, which has wide ramification in determining the scope of application of power of remission by the executives, both the Centre and the State.
"Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72(by the President) or 161 (by Governor)or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive," the apex court had said while referring the matter to the Constitution bench.
It had said the Constitution bench would decide whether the sentence of a prisoner, whose death penalty has been commuted to life, can be remitted by the government.
The bench would also decide whether life imprisonment meant jail term for rest of the life or a convict has a right to claim remission, it had said.
Another issue for the constitution bench to decide is whether a special category of sentence could be provided for cases where death penalty might be substituted by imprisonment for life or imprisonment for a term in excess of 14 years and to put that category beyond application of remission.
The bench will also decide whether the Union or the State has primacy over the subject matter enlisted in concurrent list of 7th Schedule of the Constitution for exercise of power of remission. During the hearing, Centre said that repeated mercy pleas before the President and the Governor by convicts seeking remission or commutation of their sentences violate the principle of finality.
It had also asserted that the killers of former Prime Minister Rajiv Gandhi did nor deserve any mercy as the assassination was the result of a conspiracy involving foreign nationals.
Tamil Nadu government, on other had, asserted the states have power to grant remission under the law and trashed accusations that its decision to release seven convicts in the Rajiv Gandhi assassination case was "political and arbitrary".
The state government had wanted to know as to why Congress governments at the centre delayed the decision on their mercy pleas that led to commutation of their death sentence in the first place.
Jethmalani, appearing for one of the convicts, had sought dismissal of Centre's plea, contending that the citizens could file writ petitions for enforcement of their fundamental rights and "Union of India is not a citizen but State under Article 12; it has no such rights vested in it".
"The present petition is not maintainable for additional reason that it seeks to challenge the correctness of a final judgement of this court through a writ petition under Article 32", he had said.
The apex court had on February 20 last year stayed the state government's decision to release three convicts - Murugan, Santhan and Arivu, whose death sentence had been commuted to life term by it two days before.
It had later also stayed the release of four other convicts -- Nalini, Robert Pious, Jayakumar and Ravichandran, saying there were procedural lapses on part of the state government. Santhan, Murugan and Arivu are currently lodged in the Central Prison, Vellore. The other four are also undergoing life sentence for their role in Gandhi's assassination on May 21, 1991 in Sriperumbudur, Tamil Nadu.
Recently, the apex court has dismissed the curative petition of the Centre filed against the commutation of death penalty into life imprisonment of three convicts in the case, granting a fresh lease of life to them.
The review pleas, challenging the commutation of death penalty to life term of Santhan, Murugan and Perarivalan, had been dismissed by the court in February last year on the ground of 11-year delay in deciding their mercy petitions.