4 MARCH 2016
Reviving the politics of remission
The decision of the AIADMK government in Tamil Nadu to release the seven life convicts in the 1991 Rajiv Gandhi assassination case and seek the Union government’s view on the move is a politically partisan attempt to corner Chief Minister Jayalalithaa’s electoral rivals and place the national parties in a spot ahead of the Assembly elections to be held this summer. It needs a perverse disregard for normative politics to convert the humanitarian issue of granting freedom to prisoners incarcerated for nearly a quarter century into an electoral trump card. To add perspective, it must be recalled that on February 18, 2014, the Supreme Court commuted the death sentences of three conspirators in the Rajiv Gandhi case to life terms on the ground that there was an unreasonable delay in the disposal of their mercy petitions. The very next day the AIADMK government declared that it would release all seven life convicts in the case and gave a three-day deadline to the Centre to give its views, marking a dramatic leap from capital punishment to en masse release, within 24 hours. The Supreme Court intervened to stay their release after the Congress-led government of the day challenged the decision. A Constitution Bench settled the substantive questions of law arising from the issue, holding on December 2, 2015, that the Centre had ‘primacy’ in according remission to life convicts in a case that involves consultation between the Centre and the State. It observed that the remission law should not be used for the ‘rescue’ of ‘hardened and heartless offenders’.
Commuting death sentence to life imprisonment is an act of compassion. Releasing the beneficiaries of such commutation, on the other hand, requires careful consideration on a case-by-case basis. It can be nobody’s argument that life convicts should be locked away for life. At the same time, it is noteworthy that lifelong imprisonment is now seen as an alternative to the death penalty. There may be instances when the death sentence is deemed excessive, while a regular life term, which has scope for remission after 14 years, seems inadequate. In such cases, imprisonment for the rest of one’s natural life may be the appropriate punishment. Any decision on releasing such convicts will have to be made after evaluating the gravity of the crime, the probable effect of their release on society, and the essential inhumanity of prolonged incarceration without even a sliver of hope of freedom. Some may believe it is time to set free the Rajiv case prisoners as they were mere accessories in the assassination, while the masterminds are dead. But there can be no omnibus order covering everyone. With the Supreme Court saying these convicts should not even be allowed ‘a ray of hope’, the BJP-led government at the Centre may not respond positively. The AIADMK regime could have explored the scope for a constitutional remedy such as invoking the Governor’s clemency power under Article 161. Instead, it has chosen a legally discredited route for political gains.
Welcome release, strange remarks
The Delhi High Court order releasing Jawaharlal Nehru University Students’ Union leader Kanhaiya Kumar on interim bail for six months is the only welcome news to come out of the three-week-long ‘sedition’ drama in the national capital. During thesethree intense weeks, the Delhi police embarked on an unwarranted investigation into a meeting organised by a small group of students on the campus on February 9, dubbing the speeches and slogans made there as ‘anti-national’. Mr. Kumar was arrested on February 12, and later, two more surrendered in the case. Mr. Kumar has been charged with sedition, even though he was neither the organiser nor an active participant in a programme at which allegedly ‘anti-national’ slogans were raised on February 9. Unsubstantiated allegations and unreliable video footage containing inaudible slogans and unclear images were used to put together a legally untenable case of sedition against some students. It is singularly unfortunate that while granting Mr. Kumar bail with a time limit, the Delhi High Court chose to make unusual observations strengthening the police theory that the entire JNU campus suffers from some unpatriotic and anti-national infestation that requires cleansing through pro-active policing. The court goes to the extent of saying that it is releasing Mr. Kumar on bail as a “conservative method of treatment” for a supposedly serious infection that would otherwise require surgery.
It is a curious bail order. In many respects, it accepts the prosecution’s case. It concludes that the activities at the event were anti-national, but does not say if the essential ingredients for invoking the sedition charge were present. It declares that Mr. Kumar cannot invoke the freedom of speech under Article 19(1) (a), and appears to anchor its decision to grant bail on the sole ground that he should “remain in the mainstream”. The court’s condition that Mr. Kumar should furnish an undertaking that he would not actively or passively participate in any activity that may be termed anti-national is a vague stipulation. In a democracy, the court should seek to have a restraining influence on the executive, but should not be seen as contributing to any partisan discourse that pits radical campus politics against a narrow notion of nationalism. The country is witnessing a disturbing trend of left-wing students, and liberal intellectuals backing their right to practise their brand of politics, being dubbed ‘anti-national’, while the Army and its admirers are placed in patriotic counterposition to them. Courts should not give the judicial imprimatur to the bogus binary sought to be created between ‘seditious students’ and ‘selfless soldiers’. Student activists cannot be portrayed as enemies of the families of martyred soldiers. The government must see reason and drop its attempts to criminalise contrarian views, especially when there is no proof of actual incitement to subversive violence. It should give up the use of Section 124-A, which covers sedition. The provision deserves a place only in history books, not the statute book.