Delhi tops list of sex harassment cases: Smriti
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Repeated mercy pleas frustrate legal principle: Centre to SC

by Legal DesireJuly 23, 2015

Repeated mercy pleas before the President and the Governor by convicts seeking remission or commutation of their sentences violate the principle of finality, the Centre today told the Supreme Court.

A five-judge Constitution bench headed by Chief Justice H L Dattu, hearing Centre’s plea opposing Tamil Nadu’s decision to remit the life sentences and set free seven convicts in the Rajiv Gandhi assassination case, also posed various queries on powers of Union and the state in granting remission.

Solicitor General (SG) Ranjit Kumar, appearing for the Centre, said, “Repeated filing of mercy pleas frustrate the principle of finality”.

During the day-long hearing, the bench, also comprising Justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, asked as to whether a convict can approach the Governor with his mercy plea even after its rejection by the President.

It sought the SG’s response on the issue, wondering whether the President’s auhority would be undermined, if the Governor allows a mercy plea subsequent to its rejection by the former.

The bench, which referred to the case of Yakub Memon without naming him, asked the SG to take instruction as to whether any procedure is in place to deal with the mercy pleas or there was need to make a fresh law.

The Solicitor General, on his part, said the Governor can decide the mercy plea of death row convicts even it had been by the President provided there is a “change in circumstances”.
He, however, added that the convict cannot be granted remission under the CrPC after constitutional authorities like the President and the Governor have rejected the mercy plea.

“Do you mean to say that power once exercised stands exhausted?” the bench asked, adding, “why can’t the state government can take a decision?”

The issue is as to whether the re-consideration of mercy pleas by the executive defies the legislative and constitutional scheme, the SG said.

The Solicitor General also said the states cannot decide the mercy pleas of persons convicted under central laws like Foreigners Act and the Passport Act in cases probed and prosecuted by a central agency like the CBI.

“Here is the dichotomy. If the conviction is under the state laws (like MCOCA), then the Governor has the power to commute the death penalty or any other penalty,” he said.
During the hearing, the bench referred to the new penal laws on rape and asked the SG as to why it specifies that the life term would mean “remainder of life of convict”.

Referring to various apex court decisions, the SG said it had been done keeping in mind the growing number of offences against women and the fact that often states remit sentences of convicts using “legally unsound principles”.

The arguments remained inconclusive and the Solicitor General would resume his submissions tomorrow.

Earlier, the Centre had 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.

“Our former Prime Minister was killed by these people. There was a conspiracy to kill him in which foreign nationals were also involved. What mercy is to be seen or shown? This is to be looked by you (apex court).

“Their mercy plea was rejected by the President and also by the Governor (of Tamil Nadu). So what mercy is being argued?” the Solicitor General had said.

Among seven convicts, V Sriharan alias Murugan, Santhan, Robert Pious and Jaya Kumar were Sri Lankan nationals while female convict Nalini, Ravichandran and Arivu are Indians.

The bench is hearing the maintainability of the Centre’s petition opposing Tamil Nadu government’s decision to remit the life sentences and release seven convicts in Rajiv Gandhi assassination case.

The issue of mercy was raised by     senior advocate Ram Jethmalani, who while appearing for Murugan traced the history of judicial proceedings.

Earlier, the court, on the plea of the erstwhile UPA government, had stayed Tamil Nadu’s government’s decision. It had framed seven questions to be decided by a Constitution bench on the scope of the executive’s power of remission.

Earlier, senior advocate Ram Jethmalani and Tamil Nadu government’s senior counsel Rakesh Dwivedi had questioned the maintainability of the Centre’s petition, saying Article 32 cannot be invoked by the Centre as it did not concern any violation of the fundamental rights.

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 was 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 the 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.

“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.
Such a 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 would be whether a special category of sentence may be made 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.

It will also decide whether the Union of India or the State has primacy over the subject matter enlisted in concurrent list of the Seventh Schedule of the Constitution for exercise of power of remission.

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