Does life sentence really mean life

After spending 26 years in prison, Robert Payas, one of the seven convicts sentenced to life for the assassination of former Prime Minister Rajiv Gandhi, has appealed for “mercy killing” saying he has lost all hopes of getting released. 

Similar has been the pleas moved by the other accused in the case including Nalini Sriharan and Perarivalan seeking for early release. But such pleas from life convicts also brings into sharp focus as to whether life sentence should really mean life or the right to life and personal liberty should offer a ray of hope of being set free at some point of time. 

When a court passes a life sentence it means that the offender will be subject to that sentence for the rest of their life. But with the scope of remissions, life sentence has obtained a different connotation of just 14 or 20 years in prison. This had prompted a bench of the Apex court comprising Justices K S Radhakrishnan and Madan B Lokur to observe that, “It appears to us that there is a misconception that a prisoner serving a life sentence had an indefeasible right to be released on completion of either 14 years or 20 years imprisonment. The prisoner has no such right.” 

However, the bench on clarifying that under remission the appropriate government cannot reduce the period of sentence to less than 14 years for a life convict, said, “In the case of a convict undergoing life imprisonment, he will be in custody for an indeterminate period. Therefore, remissions earned or awarded are only notional.” 

Along these lines comes Nalini’s plea who happens to be India’s longest serving woman prisoner. She has been moving the High Court and the Supreme Court seeking to be released. In a bid to internationalise the issue, Nalini also wrote to the United National High Commissioner for Human Rights, Geneva, claiming that she is suffering discriminatory treatment at the hands of both the Government of India and Tamil Nadu despite becoming eligible for release from prison as early as 2001. 

She also cited the release of Gopal Vinayak Godse, conspirator in the Mahatma Gandhi assassination case, whose life sentence was remitted paving way for his release in 1965 after spending over 20 years in prison. Asking as to why her life sentence is yet to be remitted despite spending 26 years in prison, Nalini claims  in her plea that, “I have not been considered for early release only on political grounds and not on legal grounds.” 

However, in the case of the seven accused in the Rajiv Gandhi assassination case, hope and jubilation came forth in 2014 when the then Chief Minister J Jayalaithaa had called for their release. But that failed to materialise as the Centre immediately petitioned the Supreme Court against the state’s decision. A five-judge bench which went into the issue ruled that the Tamil Nadu government had no jurisdiction over their release as the case was investigated by a Central agency (CBI) and naturally the Centre alone can decide whether they deserved remission. 

Legal experts note that, “Under normal circumstances, Section 432 and 433 of the CrPC gives absolute powers to the state government or a Union territory to grant remission to any prisoner convicted by a court of law. But, in this case, Section 435 of the CrpC comes into play as the CBI, which functions under the Delhi Special Police Establishment Act (DSPE Act), was the prosecuting agency. In cases investigated and prosecuted by the CBI or the Enforcement Directorate or any other central agency, the power to grant remission is vested in the Union government.” 

Clarifying further, it is said that in this case if the Tamil Nadu government passes an order for suspension/remission of the sentence, a similar order needs to be passed by the Centre for it to become effective. 

However, advocate M Radhakrishnan, who has been fighting for Nailini’s cause since 2006, says, “The Constitution bench, which struck down Nailini’s release under Section 432 and 433 of CrPC in its order also made it clear that the power of the State under Article 161 of the Constitution of India is untouchable by the court. It said that life convicts can always request the State to release them under Article 161 and the State can do so exercising their sovereign power.” 

But he also notes that “The Tamil Nadu Government had no real intention of releasing the seven life convicts in 2014. For, if they had intended to, they would have opted it through Article 161 of the Indian Constitution as it is neither untouchable by the Centre nor the courts.”

But once again Article 161 pertains to the power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. It says, “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” 

Arguments in this case at the Supreme Court had dwelt on aspects like the concept of life without remission was not recognised historically and that life imprisonment ought not to be for more than 20 years. This was rebuted on the basis that it is a settled position of law that graver the crime, longer must be the sentence and longer is the sentence, the need for set-off and remission only increases owing to the reformative aspect of punishment and that 

in the case of Nalini and others whose death sentences were commuted to life, seeking a double commutation was asking for more than a ray of hope. 

PUCL National General Secretary and senior Advocate Suresh, said, “It is high time justice is tempered with a certain amount of humaneness. When worldwide acceptance prevails over reformation of prisoners as an integral part of judicial jurisprudence, the conduct of those accused in the Rajiv Gandhi assassination case has been exemplary. The period post-conviction shows how far they have reformed.” 

Pointing out that the issue has trickled down technicalities stuck in political fights, Suresh notes that, “At the stage of pardon it is only the criminal who ought to be accounted for and not the crime.” 

Echoing a similar view of the issue getting mired in technicalities is advocate D. Nagasaila. She says, “In the Rajiv Gandhi assassination case the seven convicts, who were not the key conspirators, have all educated themselves in the prison. Moreover, they have exhibited that they are fit to assimilate in society and are capable of leading a normal life.”

Interestingly, an apex court order, which also seeks to put an end to the practice of en-masse release of the convicts by various governments on ‘festive’ occasions, has insisted that each release requires a case-by-case basis scrutiny.  In fact, the Apex court in a couple of cases had quantified the prison term much in excess of 14 years while commuting their death sentences to life term based on the aspect that the impact of his or her release on the society and the victims have to be taken into consideration before ordering the release of such life convicts. 

Under such circumstances, the Supreme Court’s observation that the minimum sentence provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the Cr.PC gains credence. It also notes that, “Wherever the Indian Penal Code or such penal statutes have provided for a minimum sentence for any offence, to that extent, the power of remission or commutation has to be read as restricted; otherwise the whole purpose of punishment will be defeated and it will be a mockery on sentencing.”

A Sri Lankan national in his twenties at the time of assassination incident.

Said to be a member of LTTE’S intelligence wing.

Close aide of the prime accused Sivarasan. 

Product of Madras Institute of Engineering Technology.

Played a crucial role in the planning of the assassination. 

One of the few conspirators who was informed  early that their target was Rajiv Gandhi. 

Met Sivarasan before he left for  the Sriperumbudur venue

Sole survivor of the case of assassination of Rajiv Gandhi.

Wife of Murugan, another convict in the case. 

Hosted two women - Suba and Thanu- who were brought from Sri Lanka to execute the plan. 

Stayed with them and her husband while the plan was laid out. 

Accompanied the women and prime accused Sivarasan to the rally of the then PM VP Singh to know the security set-up.

Informed in advance that they will be targeting Rajiv Gandhi. 

After the blast that killed Rajiv Gandhi, she along with Thanu and Suba met Sivarasan and fled the spot.

Twenty-one-year old  at the time of the Rajiv’s killing. 

A member of the  LTTE in Lanka. 

Allegedly sent to India to carry out the assassination.

Admitted that he was a part of the ‘suicide squad’ and had come to India in January 1991. 

Motivated Nalini to join the LTTE. 

Aided in a recce carried out before the  assassination at a rally of the then PM VP Singh. 

Convicted on the basis of his confessional statement.

Court observed that his role  was one of the key conspirators.

A 20-year-old at the  time of assassination and had been a part of the LTTE since 1989. 

Involved in the sale of LTTE literature. 

Met LTTE chief Velupillai Prabhakaran and other leaders of LTTE when he went to Sri Lanka. 

Accused of aiding the movement  of LTTE in India. 

Prepared a sketch of the Vellore Fort to free prisoners of the terror group. 

Allegedly involved in getting equipment for the bomb used to kill Rajiv Gandhi.

Reportedly carried out a recce of VP Singh’s rally to assess security arrangements

A Sri Lankan Tamil who landed with his wife and others as part of a batch of LTTE commandos in September 1990. 

Had claimed that his child had died due to atrocities perpetrated by the IPKF and hence wanted to seek revenge.

Confessed to being part of the key planners for the assassination.

Convicted for his role in the conspiracy

Brother-in-law of Payas. 

Was also sent to India  by the LTTE in 1990. 

Arranged for a house in Tamil Nadu for the other accused to stay and plan the assassination.

A Sri Lankan national, who landed in India in December 1990.  

Actively funded by prime accused Sivarasan while being asked to execute various tasks. 

Given money to set up a travel agency and buy a vehicle for use by other LTTE cadre.