The Telegraph
Saturday , February 22 , 2014
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Jurisdiction challenge to Rajiv verdict
Centre files review plea

New Delhi, Feb. 21: The Centre has challenged the jurisdiction of the three-judge Supreme Court bench that commuted the death penalty of Rajiv Gandhi’s killers, saying a Constitution bench with at least five judges should have heard the matter.

In a review petition filed today, the government said “the judgment was passed without jurisdiction”.

Chief Justice P. Sathasivam headed the three-judge bench that had on Tuesday commuted the death sentences of Murugan, Santhan and Perarivalan on grounds of the Centre’s delay in deciding their mercy petitions.

“The issue raised was that of the commutation of the death sentence to life imprisonment on the ground of delay, which allegedly attracted Article 21 (right to life and personal liberty) in favour of the convicts. Therefore, it involved a substantial issue of interpretation of the Constitution and ought to have been heard by a bench of five judges, as mandated by the Constitution,” the review petition said.

It is expected to be taken up on Monday. “Yes, we filed the review petition today,” solicitor-general Mohan Parasaran confirmed to The Telegraph.

The petition cited Article 145(3) of the Constitution, which stipulates that in a matter involving a substantial question of constitutional law, at least five judges should decide the issue.

“The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution shall be five,” Article 145(3) says.

The plea also raised questions about whether the President’s decision on mercy pleas could be called into question. “…the interference of this hon’ble court with the merits of the order of the rejection issued by the President, in exercise of the power conferred by Article 72, is without jurisdiction,” the petition said.

“It is submitted that once the President had, in exercise of his power under Article 72, rejected the mercy petition, this hon’ble court only has a limited power, under judicial review to disturb the order of the President,” it added.

The mercy plea of the three convicts was rejected by then President Pratibha Patil in August 2011.

“The President is not required to give any grounds and the only aspects required to be looked into are those with respect to mala fides, political expediency, extraneous factors, non-applicability of mind to the material available, undue haste, etc., which are all negative aspects,” the petition said.

The contention was that delay in disposal of mercy pleas could not be a ground for commutation of death sentences.

The review petition also argued that the order was also contrary to the provisions of the Criminal Procedure Code, 1973, which leaves commutation to the jurisdiction of the “appropriate government”. The plea contends that under the CrPC, the Centre is the “appropriate government”.

“The court ought to have passed an effective order which would have prevented (plans to) release the convicts. It is submitted that two of the petitioners, namely, V. Sriharan (Murugan) and T. Suthendraraja (Santhan), are not Indian citizens and were hardcore militants of the LTTE who infiltrated Indian territory with the sole intention of assassinating the late Shri Rajiv Gandhi,” the petition said.

The allusion was to the Jayalalithaa government decision, stayed by the apex court yesterday, to release Rajiv’s killers.