By Bikram Jeet Batra

The Tamil Nadu Government has rejected an application by Nalini – one of the convicts in the Rajiv Gandhi assassination case – seeking a premature release from her sentence of imprisonment for life (LI). Readers will recall that although Nalini was sentenced to death, the Governor of Tamil Nadu commuted her sentence to LI. Nalini has now completed nearly 19 years imprisonment. In all sentences commuted to LI, the convict must serve a minimum of 14 years imprisonment. Thereafter they have a right to be considered for premature release although not a right to be released.

Although the report of the prison advisory board is yet not available and the reasons for the refusal are unclear, Nalini’s case is a rare one where there was extensive media coverage regarding the premature release deliberations and decision-making. This case also highlights the fact that the executive does not automatically commute life sentences after 14-years imprisonment. Under the present system, where the State believes it has sufficient reason to keep a person in jail beyond 14 years, it can do so – with reasons supplied and subject to judicial review.

Why then are our judges so keen to reject the existing system of remission and premature release? In a series of judgments, the Supreme Court has created a new category of LI – where judges will lay down a much higher minimum term at the time of sentencing. In addition to ‘ordinary’ murders where regular LI would be sufficient and ‘rarest of the rare’ where a death sentence is to be awarded; there is now a third category of ‘rare’ murders where the Judge can award any minimum term between 14 years and whole-life.

I have written on this blog previously about the constitutional and penological questions that arise from these sentences. There are some obvious sentencing concerns as well. The creation of this new category of lifers with variable minimum-terms has come without any deliberation on a framework or process to assist judges in determining the length of sentence. In the past few years, many Supreme Court judgments have accepted that the functioning of the ‘rarest of the rare’ formulation in capital sentencing was arbitrary and unsatisfactory. How will this new categorization avoid the same?

Glaring discrepancies are already visible in the new LI judgments. Last year, in State v. Shree Gopal @ Mani Gopal (where the new category was named ‘rare’), the Delhi High Court awarded a minimum of 20 years. In March 2010 the same judgment was cited as a precedent by a trial judge in Delhi who however decided that a 30-year term would be appropriate (State v. Jitender @ Kallu). Such discrepancies are not entirely surprising since the Supreme Court itself has ranged from 20-35 years and even to whole life sentences.

This is no minor issue. Lifers form over half of our entire convict population and over 8500 persons were sentenced to LI in murder cases in 2008 alone. With trial judges across the country now free to determine the minimum term – without any guidance whatsoever – wherever they deem the case to be a ‘rare’ murder, there is bound to be chaos in terms of sentencing.

The Supreme Court believes that creation of this new category is necessary since the executive acts mechanically in releasing lifers after the minimum 14 years imprisonment. Nalini’s case is a reminder that this entire change is unnecessary. Our existing system of LI can address any problem of mechanical release by ensuring there is some pressure on the executive to follow due process and apply its mind. In this case it was political actors and the media that brought the pressure. Monitoring by the Supreme Court or even the NHRC can have the same result for the thousands of other, lesser visible cases. Instead of resorting to a few tweaks that can achieve the desired result, our judges, inspired by similar ‘tariff’ systems of life imprisonment abroad, are treading down the dangerous path of piecemeal change.