Relevance: GS Paper II (Polity & Governance)
Why they should be released ?
- Any further delay in ordering the release of the seven convicts in the Rajiv Gandhi assassination case will run the risk of the state falling foul of Article 14 of the Constitution which says that it “shall not deny to any person equality before the law or the equal protection of the laws”.
- Hundreds of prisoners who have been convicted of similar crimes have had their sentences pardoned under Article 161.
- Equality has never been a notional or abstract concept. It must be extended to the convicts regardless of the crime or punishment or any other consideration.
- These prisoners in question must be dealt with under the Rules in the same manner as would any other prisoner serving a sentence in a prison in Tamil Nadu.
- Our prisons must stay loyal to the theory of reformative justice. Under this theory, a crime is committed on account of a set of peculiar circumstances, and it is highly probable that these circumstances may never repeat again. Therefore, the focus of our prison system should be in bringing about reform in the moral character of each prisoner and enabling him to restart his life outside the jail complex after serving his sentence.
- Remission is necessary; otherwise overcrowded prisons will overflow with old and ailing prisoners who have no hope of release.
Is the state govt empowered to release them?
- The Governor, as the repository of the executive powers of the state, is bound to take a decision “in harmony” with the Council of Ministers, which has already recommended their release.
- The division of powers places “public order” under Entry 1 of List II (State List) of the Seventh Schedule of the Constitution. Therefore, the matter must lie within the exclusive remit of the State government.
- The commutation of sentence vide V. Sriharan v. Union of India (2014) automatically brings the Tamil Nadu Prison Rules into play. Rule 341 states that the Advisory Board of the prison shall deem life imprisonment to be “imprisonment for twenty years” for consideration for premature release or parole. Any divergence from this principle would be ultra vires on the ground of arbitrariness.
Why they should not be released?
- There cannot be any compromise on the question of national security or national sovereignty.
- The kind of danger that is apprehended from these convicts, and keeping in mind the kind of conspiracy and crime that they have committed, there appears to be no reason to exercise pardon in their favour.
- Pardon is not a right. Pardon is an act of discretion exercised in specific circumstances where an individual deserving of clemency is examined in the context of his family background. The dependence of his family on him, a critical emergency or a serious health issue necessitates his release. Pardon is not meant to be exercised without justifiable grounds.
- These are political convicts. The Supreme Court has cautioned against their release. Even otherwise, given the large political conspiracy involved in the assassination of Rajiv Gandhi, there does not appear to be any justification for exercising the extraordinary powers of pardon in their case.
- Let us understand that the punishment prescribed was death. In India, the death sentence, though present in statute books, is rare. The rare instances when death sentences have been awarded have been strictly followed. In the present instance, the death sentence was commuted to life imprisonment, which itself is an act of clemency.
- Security has become a key issue not only locally but globally. It is not only our right but our duty as a part of the nation and the world to deal effectively with any attack or infringement or breach of security, and that too in a conspired, concerted manner.
Way forward
- This case involves not only the assassination of a former Prime Minister, but also the deaths of several others in the incident, including policemen and bystanders. It may well be that the family of Rajiv Gandhi may have no objection. But equally, the families of the other victims need to express their preferences.
- Many of those who are currently imprisoned were imprisoned when they were barely in their 20s. They still have a long life ahead of them. The question is, should they be spending their remaining years in prison?
- A case may be made to say that the perpetrator and the principal conspirator are dead, and that those who were imprisoned were mere pawns, some of whom may not have known the entirety of the enterprise. In these circumstances, to routinely deny the benefit of remission may not always be appropriate.
- Another factor that may need to be taken into account is the social impact of a remission order, in the event that it is passed in this case. If people can be freed even after being convicted for the murder of a former Prime Minister in a terror incident, questions could be asked whether India is a soft state on matters of terrorism.
- A release order in this case may be cited as a precedent in other cases where terrorists and their co-conspirators are serving sentences of imprisonment for life.
Conclusion
There is no straight answer. Complicated questions of law and policy are involved, which may have to be resolved before a final call is taken.
