New Delhi: The Supreme Court today deferred to July 21 the hearing on the issue of power of remission by the Centre and the states, which had arisen after Tamil Nadu government had decided to remit the sentences and set free seven convicts in the Rajiv Gandhi assassination case.
A five-judge Constitutional bench headed by Chief Justice H L Dattu, which began hearing the matter that was referred to it on April 25 last year, was informed by the Centre that the issue would require extensive hearing for three to four days.
The bench, which also comprised Justices F M I Kalifulla, P C Ghose, Abhay Manohar Sapre and U U Lalit, then told Solicitor General Ranjit Kumar, representing the Centre, that it was sitting for a day only in the present combination this week and adjourned the hearing to July 21.
The court would also examine whether state governments also have any power of remission in the prosecution launched by central agencies like CBI.
Senior advocate Ram Jethmalani, appearing for V Sriharan alias Murugan, one of the seven convicts in the Rajiv Gandhi murder case, however, opposed the Centre's submission in the case saying that the matter did not require that much time.
Jethmalani, in his written submission, said 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", his written submission said.
"It is well settled in law that a judgement of this court cannot be challenged by way of a petition under Article 32. The only remedy is by way of a Review or Curative petition," it said, adding, "the stay obtained in respect of remissions all over the country (not confined to the present convicts) continues unlawfully even today".
Earlier the court, on the plea of then UPA government, had stayed Tamil Nadu's decision to set free all the seven convicts after remitting their sentences. It had framed seven questions to be decided by a Constitution bench on the scope of executives' power of remission.
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 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 or the State has primacy over the subject matter enlisted in concurrent list of 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, saying that the state has no power of take such decision and the remission in the present case is illegal and without jurisdiction.