New Delhi: Trashing accusations that its decision to release seven Rajiv Gandhi assassination case convicts was "political and arbitrary", Tamil Nadu on Tuesday wanted to know in the Supreme Court 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.
"Why UPA-I and UPA-II did not hang the killers of Rajiv Gandhi in ten years of its rule?" the counsel for Tamil Nadu asked a five-judge Constitution bench headed by Chief Justice H L Dattu.
The bench, also comprising Justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, is going into the maintainability of the Centre's petition opposing Tamil Nadu government's decision to set free the convicts after remitting their life sentences in the Rajiv Gandhi assassination case.
Senior advocate Rakesh Dwivedi, appearing for the state government, said Tamil Nadu has been wrongly accused of taking a "political, arbitrary and whimsical" decision.
"Politics is not the dirty world. All political parties said don't hang them. People, all MLAs, opposition were against the hanging," he said.
"How could it be ignored that none from the opposition raised objection," he said, adding that the Central government, which did not take a decision on their mercy pleas during 2000-2012, cannot accuse the state dispensation of arbitrariness.
"You listen, consider the mercy pleas, and do not hang them. Then you are merciful. When we do this, then it becomes arbitrary and whimsical," Dwivedi said.
"Another apprehension is that they will run away to Sri Lanka. On a lighter side, it will be good if they run away. The government can issue a red corner notice to prevent their entry into India," the state government said, as per The Times of India.
The apex court had on June 28 rejected the curative petition of the Centre against the commutation of death penalty into life imprisonment of three convicts in the case.
The review pleas, challenging the commutation of death penalty to life term of Santhan, Murugan and Perarivalan, were dismissed by the court in February last year on the ground of 11-year delay in deciding their mercy petitions.
The three convicts are lodged in a Vellore prison. Former Prime Minister Rajiv Gandhi was assassinated on May 21, 1991 at Sriperumbudur in Tamil Nadu.
During the day-long hearing, Dwivedi said the state is empowered to consider changes in "factual and material circumstances" of the case and the convicts.
The killing of the former Prime Minister was "diabolic", but after twenty five years the facts like age, health and other facts of the convicts required to be looked into, Dwivedi said.
"It cannot be the case that life (imprisonment) is life without a ray of hope," he said.
The court would resume hearing tomorrow.
Earlier, the Centre had asserted that the killers of Gandhi did not deserve to be shown any mercy as the assassination was the result of a conspiracy involving foreign nationals.
Among the seven convicts, V Sriharan alias Murugan, Santhan, Robert Pious and Jaya Kumar Are Sri Lankan nationals, while female convict Nalini, Ravichandran and Arivu are Indians.
The court, on a plea of the erstwhile UPA government, had on February 20 last year stayed the state government's decision to release Murugan, Santhan and Arivu, whose death sentences 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, noting 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.
"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 at 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 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 said.
Another issue for the Constitution bench to decide would be whether a special category of sentence may 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.
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.
The Centre had opposed the decision taken by Tamil Nadu government on remission of sentence, contending that the state has no power of take such a decision and the remission in the present case is illegal and without jurisdiction as it was CBI, a central agency, which had probed the case and prosecuted the accused.
(With PTI inputs)