Chief Minister of Tamil Nadu declared in the State Assembly that the killers of Rajiv Gandhi, will be released by the State Government if the Central Government does not release them in three days.
She quoted Section 432 of the Cr.PC, India.
This is the Law.
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any lime, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the    age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and,—
(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in section 433, the expression “appropriate Government” means,—
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases the Government of the State within which the offender is sentenced or the said order is passed.
But this does not mean that the Government can do it easily.
In the present case the case has been under TADA and the judgement was based on this and the case was investigated by the Delhi Police under Delhi Special Police Establishment Act .
This makes the Center’s consultation mandatory.
Even if the State wants to ahead with its view despite the Central Government’s objections, it can not as , though Police comes under the State List, it can not supercede Central Law such as TADA in this case.
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The State List consists of 66 items. Uniformity is desirable but not essential on items in this list. The State legislature has exclusive power to make laws on these subjects. But in certain circumstances, Parliament can also make laws on subjects mentioned in the State list. Though States have exclusive powers to legislate with regards to items on the State List, articles 249, 250, 252, and 253 state situations in which the Union Government can legislate on these items.[2]
If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. There is an exception to this in cases “where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
”
The government in India’s Tamil Nadu state has decided to free seven people convicted of plotting the assassination of former PM Rajiv Gandhi.
The six men and a woman were members of the Sri Lankan Tamil Tiger rebel group.
The move came a day after the Supreme Court commuted the death sentences of three of the convicts, citing delays in deciding their mercy pleas.
Gandhi’s murder in May 1991 was seen as retaliation for the sending of Indian peacekeepers to Sri Lanka in 1987.
The decision to free the prisoners was taken on Wednesday morning at a cabinet meeting chaired by Tamil Nadu Chief Minister J Jayalalitha.
Ms Jayalalitha told the state assembly later that the government would send the cabinet decision to the federal government for approval.
“If there is no reply within three days from the centre, the state government will release all the seven… in accordance with the powers vested with the state government,” she said.
Among the prisoners to be released are the three men whose death sentences were commuted on Tuesday by the Supreme Court – Murugan, Santhan and Perarivalan. They have been in jail for more than 20 years and on death row since 1998.
The court ruled that they should be spared the death sentence as it was inhumane to keep them for so long under the threat of execution.
Nalini Sriharan, an Indian Tamil woman who will also be released, was also given the death penalty by the trial court in 1998, but the authorities commuted this to life imprisonment in 2000.
Three other convicts – Robert Pious, Jayakumar and Ravichandran – who are serving life sentences for involvement in the assassination would also be among those freed, authorities said.
Source:
http://www.bbc.co.uk/news/world-asia-india-26252797
http://en.wikipedia.org/wiki/State_List
https://sites.google.com/site/jailordocs/Section-432-CrPC
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