Remission Of Sentence And The Release Of AG Perarivalan

KEY TAKEAWAYS

• The Supreme Court awarded A.G. Perarivalan, who was convicted in the assassination of Rajiv Gandhi, bail stating that he has been in prison for more than 30 years and is entitled to be released. Despite the Centre's opposition, a bench of Justice L. Nageswara Rao and Justice B.R. Gavai ruled that he is entitled to bail because he had served more than 30 years in prison.
• Perarivalan filed a special leave appeal in 2016 against the Madras high court's rejection to hear his application for commuting of sentence, which was denied. In the assassination case, he is one of seven people serving life sentences.The Union government has objected to the petition, claiming that the President has the right to determine the matter. Perarivalan's death sentence was converted to a life sentence after he cited a delay in the decision on his mercy request, according to the government, and he cannot claim more advantages by citing another delay.
• The bench said Perarivalan's release is conditional on him meeting the trial court's terms, which include reporting to the local police station in Jolarpettai during the first week of every month.
• The death sentences of four prisoners — Perarivalan, Murugan, Santham, and Nalini – was upheld by the Supreme Court in May 1999.
• On February 18, 2014, the Supreme Court modified or commuted Perarivalan's death sentence to life imprisonment, along with the sentences of two other inmates – Santhan and Murugan – due to the Centre's 11-year delay in deciding their mercy petitions.

INTRODUCTION

Perarivalan was arrested when he was 19 years old, and in May 1999, he was sentenced to death. He was suspected of purchasing the 9-volt battery that triggered the belt bomb that killed India's former Prime Minister Rajiv Gandhi. Over the long pendency of their mercy pleas, his sentence and those of two others, Murugan and Santhan (all Sri Lankans), were commuted to life in 2014. Soon after, Tamil Nadu's AIADMK administration ordered the release of all seven of the case's seven defendants. 

While the Governor did not consider Perarivalan's pardon request in 2015, a Supreme Court judgement in September 2018 on a similar case indicated that the Governor was "deemed fit" to decide on the pardon.

The AIADMK government suggested that all seven criminals be released within three days. 

On September 9, 2018, the Tamil Nadu government recommended to the state Governor that Perarivalan and six other defendants in the case be released early. The Supreme Court awarded A.G. Perarivalan, who was convicted in the assassination of Rajiv Gandhi, bail, stating that he has been in prison for more than 30 years and is entitled to be released. Despite the Centre's opposition, a bench of Justice L. Nageswara Rao and Justice B.R. Gavai ruled that he is entitled to bail because he had served more than 30 years in prison. Perarivalan filed a special leave appeal in 2016 against the Madras high court's rejection to hear his application for commuting of sentence, which was denied. In the assassination case, he is one of seven people serving life sentences.

THE CURRENT CASE -AG Perarivalan v. State of Tamil Nadu, 2016

The Supreme Court docket on Wednesday granted bail to Rajiv Gandhi assassination convict A G Perarivalan. The highest courtroom had been mulling if it ought to give bail to Perarivalan because the Governor is to resolve his plea in search of launch from jail.

The bench, additionally comprising Justice B R Gavai, noted that there isn't any dispute about Perarivalan having undergone 32 years of imprisonment and that the courtroom was knowledgeable he was launched on parole twice earlier and there were no complaints.

Perarivalan had mentioned that the Governor was to take a call on his prayer for remission and that the delay was a floor for bail.

Opposing his plea, the Centre had acknowledged that the President was the suitable authority to resolve Perarivalan’s request and stated that in the case of offences to which the manager energy of the Union extends, it is the Centre that is entitled to resolve on plea for launch. It further contended that Perarivalan had already benefited from a reduction in his death sentence to a life sentence by alleging a delay in the decision on his mercy appeal, and that he could not claim additional benefit by citing another delay.

On this, the Supreme Court docket mentioned, “In view of the stand taken by the Union of India that the state authorities don't have the ability to entertain the application particularly after the sentence of dying imposed on the has been decreased to life, the matter must be determined lastly”. It additionally mentioned that enough materials have been produced by the applicant to show his conduct through the lengthy incarceration, acquisition of levels and in poor health well being.

Perarivalan was arrested at the age of 19 in the case and condemned to death in May 1999. He was accused of purchasing the 9-volt battery that was used to detonate the belt bomb that killed Rajiv Gandhi, the former Prime Minister of India. Over the course of the extended pendency of their mercy pleas, his sentence, along with that of two others, Murugan and Santhan (all Sri Lankans), was commuted to life in 2014. The AIADMK government in Tamil Nadu quickly ordered the release of all seven of the case's seven defendants.

Whereas a pardon request moved by Perarivalan in 2015 was not thought-about by the Governor, a Supreme Court docket order on an associated petition in September 2018 clarified that the Governor had to resolve on the pardon. Within three days, the AIADMK authorities had benefited from each one of seven convicts being launched.

The Tamil Nadu authorities had on September 9, 2018, made an advice to the state Governor for the untimely launch of Perarivalan and 6 different convicts within the case.

Perarivalan's counsel representing the Tamil Nadu government cited the case of Gopal Godse in his argument for obtaining bail for Perarivalan. Gopal Godse, Nathuram Godse's brother, was serving a life sentence for assassinating Mahatma Gandhi, the nation's father. He was later given a reduced sentence and was released after 14 years in prison. Perarivalan had spent the previous 32 years in prison. Godse's case has shifted Perarivalan's situation, putting him on the verge of being granted bail for the first time in three decades. 

Perarivalan's release, on the other hand, has raised the likelihood of similar relief for the remaining inmates. Following Perarivalan's bail, Perarivalan's lawyer, Prabhu, told media that the remaining convicts have a chance to receive bail after Perarivalan. Several leaders and groups in Tamil Nadu, notably the VCK and the Communist Party, were pleased to discover that Perarivalan had been granted bail. 

During an evening prayer ritual at Birla House in Delhi on January 30, 1948, Mahatma Gandhi was assassinated by his assassin Nathuram Vinayak Godse. Prime Minister Jawaharlal Nehru stated to the world from atop a gate of Birla House that the "light has gone out of our existence." 

A special court, established by decree of the central government, found eight individuals guilty of murdering within Red Fort. On November 15, 1949, Godse and co-conspirator Narayan Apte were hanged for the murder of the Father of the Nation.

BACKGROUND - RAJIV GANDHI ASSASSINATION

Rajiv Gandhi, the former Prime Minister of India, was assassinated on May 21, 1991, in Sriperumbudur, Tamil Nadu, India, by a suicide bomber. Along with Rajiv Gandhi, at least 14 others were slain. It was carried out by Thenmozhi Rajaratnam (also known as Kalaivani Rajaratnam or Dhanu), a member of the Liberation Tigers of Tamil Eelam (LTTE), together with Dr. Jagjit Singh Chohan of the National Council of Khalistan (NCK) and Gurjant Singh Budhsinghwala of the Khalistan Liberation Force. At the time, India had just completed its engagement in the Sri Lankan Civil War through the Indian Peace Keeping Force.

Rajiv Gandhi and G.K. Moopanar were actively campaigning in southern India for the approaching elections. After campaigning in Visakhapatnam, Andhra Pradesh, on May 21, he travelled to Sriperumbudur, Tamil Nadu. Gandhi was taken by motorcade in a white Ambassador car to Sriperumbudur around two hours after arriving in Madras (now Chennai), stopping at a few other election campaigning spots along the route.  When Rajiv arrived at a campaign event in Sriperumbudur, he got out of his car and started going towards the dais, where he was scheduled to speak. Many well-wishers, Indian National Congress employees, and schoolchildren greeted him along the route. Dhanu (Thenmozhi Rajaratnam), the assassin, approached and greeted him.

At exactly 10:10 p.m., she reached down to touch his feet and exploded an RDX explosive-laden belt placed beneath her dress. In the explosion that ensued, Gandhi, his assassin, and 14 others were murdered, along with 43 more who were severely injured. Local photographer Haribabu captured the assassination on film, and his camera and film were found intact at the scene despite his death in the blast. 

REMISSION & COMMUTATION PROVISIONS

Commutation of sentence- Unlike Suspension and Remission, which merely influence the length of the penalty without changing the character of the punishment, Commutation alters the nature of the punishment and transforms it into a less severe kind of punishment.

There is nothing to restrict the government from commuting a sentence, even if it is as low as a fine. Under Section 433 of the CrPC, the appropriate government gets the power to commute the sentence in an appropriate case. Commutation is possible for a variety of penalties, including death sentences (mercy plea). 

• Any other punishment allowed in the IPC is preferable to death. 
• Life in prison or a sentence of not more than fourteen years in jail or a fine. 
• For a lesser sentence of imprisonment or a fine, the defendant has received a sentence of harsh imprisonment. 
• Sentence to a fine for a simple sentence.

Commutation of a death sentence has always been contentious since it presents a question about the accused's basic human rights and, on the other side, the societal impact of the terrible crime. Section 433 of the CrPC gives the power to the government to commute the death sentence to a simpler sentence.

According to the terms of the CrPC, the majority of death row inmates have had their sentences commuted to 14 years of life imprisonment. In some circumstances, remission or commutation rights are restricted: The power of the President and Governor is limited under Section 433A of the CrPC, which states that they cannot commute a death sentence to less than 14 years of life imprisonment. Even after serving 14 years in prison, the offenders are not released unless an order under Section 51 of the IPC or Section 433A of the CrPC is issued. In the instance of a determinate period of sentence, remission might be given under Section 432 of the CrPC.

The power is to grant an "extra" term of incarceration to a criminal, in addition to the remission granted under the jail manual or statutory guidelines. In the case of an indefinite sentence, such as life imprisonment, the person's sentence may be remitted or suspended, but not on the premise that the incarceration is arbitrary or that it is for twenty years.

In 2014, the Supreme Court of India in the case of V. Sriharan v. Union of India commuted the death sentences granted to the persons convicted of assassinating Rajiv Gandhi to life imprisonment subject to remissions as they may be eligible for under the CrPC. On the very next day, the State of Tamil Nadu wrote a letter to the Union of India stating that it was proposing to release 7 persons convicted for the assassination of Rajiv Gandhi and requested that the Centre communicate their views to the State within 3 days. Against this action the Union of India approached the Supreme Court asking that this letter dated 19.2.2014 be quashed. The Supreme Court in the case of Union of India v. V. Sriharan referred the questions raised in this case to a larger bench of 5 judges to determine various questions which have been raised through this petition.

Remission 

Pardoning power is derived from statutory and constitutional authorities in India. The President and Governor of India have the power to grant pardons, suspend, remit, or commute a sentence imposed by the courts under Articles 72 and 161 of the Indian Constitution. 

In addition to the constitutional provisions mentioned above, the Criminal Procedure Code of 1973 (Cr. P.C.) allows for sentence suspension, remission, and commutation.

The government has the authority to suspend or remit penalties under Sections 432, 433, 433A, 434, and 435. Furthermore, Sections 54 and 55 of the Indian Penal Code (IPC) give the competent authorities the authority to commute a death sentence or a life term as stipulated therein. The appropriate Government, i.e. the Central Government in the case of an offence committed in the Union Territories and the State Government in the case of an offence committed in the States, is empowered under Section 54 of the Indian Penal Code 1860 to commute, i.e. to change a sentence of death to any other punishment provided under the Code. The powers conferred by Section 55 can be exercised by the government on its own initiative, without the involvement of the accused. The provisions of sections 54 and 55 of the Indian Penal Code have become superfluous in light of similar provisions found in Sections 432 to 434 of the Code of Criminal Procedure 1973, which empower the appropriate government (central or state) to commute, remit, or suspend a court-imposed sentence.  It is vital to remember that commutation lies outside of the courts' authority because it is within the executive's discretion to change a sentence once it has been imposed by a court of law.

K.M Nanavati V State of Bombay (1959) 

It was held that the governor can grant full pardon at any time during the pendency of the case in the Supreme Court in the exercise of mercy jurisdiction. Such a pardon after the accused person has been convicted by the court has the effect of completely absolving him from all punishments or disqualifications attached to conviction for a criminal offence. That power is essentially vested in the Head of the Executive because the judiciary has no such Mercy jurisdiction.

But the suspension of the sentence for the period when the Supreme Court is seizing the case could be granted by that court itself. If in respect of the same period the government also had the power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction.

State Govt. of NCT of Delhi v. Prem Raj (2003) 

Section 432 of the Code of Criminal Procedure gives power to the Government to remit sentence, the fact remains that remission of punishment assumes that the conviction is correct and only reduces the punishment in part or in whole. Remission of the sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself that his or her conviction is not sustainable in law.

CONCLUSION

The highest prerogative of a sovereign nation is the power of pardoning and remission. If the laws are overly harsh, the power of pardon would be a necessary remedy. Make good laws, and you won't need a power to overturn them. 

If the punishment is essential, it should not be suspended; if it is not, the criminal should not be sentenced to it. Despite the fact that there are legal guidelines for remission, the authorities are not following them. This fact has been disclosed in a number of cases before several High Courts and the Supreme Court. The Indian Constitution's equality clause is frequently violated by prison officials. Therefore, we should have stricter rules framed for granting remission.