[Day 9] Constitution Bench Reference in Union of India v. Sriharan

 (As the arguments in Union of India v. Sriharan head towards conclusion, Nishant Gokhale brings you the arguments presented on 11.8.2015)
 Dr. Yug Mohit Chaudhary continued his arguments today (11.8.2015) on behalf of Respondent No. 2 to Respondent No. 7 who are all but one of the prisoners convicted in the Rajiv Gandhi murder case today.
Continuing his argument from the previous hearing (6.8.2015) that the Union in this writ was seeking to question the judgment of the Supreme Court commuting the death sentences of some of the Respondents to life imprisonment for their entire life, subject to remission. He submitted that except for a review or curative petition, the decree of the Supreme Court itself could not be re-opened through a different case. Even if a judgment of the court was over-ruled as a precedent in a subsequent case, it would not cease to operate in the case in which the decree was made. He placed reliance upon the case of the In Re: Special Reference No. 1 of 2012 which was a Presidential Reference regarding the allocation of natural resources in the context of cellular licenses. He submitted that if in a Presidential Reference, the Supreme Court had held that a previous judgment cannot be unsettled, how could the Union in a proceeding like this be permitted to question the validity of the commutation judgment despite a review petition and curative petition by the Union on this issue having been rejected by the court.
He submitted that as far as the questions in the present reference to the Constitution bench were concerned, the question of meaning of the term “life imprisonment” did not arise in the case of the Respondents. He however submitted that he supported the view that life imprisonment cannot be awarded by the courts beyond the scope of remission. He submitted that the National Human Rights Commission had issued guidelines which itself stated that the maximum period of incarceration in life imprisonment would be 25 years and there could be no case where a person under the sentence of  life imprisonment would be ineligible for remission. He submitted that these guidelines had been accepted by the Union of India in an affidavit filed by them in a different case in 2004 (Balakrishnan’s case) to be “fair and reasonable”. He also thereafter referred to the Model Prison Manual issued by the Bureau of Police Research and Development which provided for premature release and made reference to the NHRC Guidelines. Hence he submitted that the Union of India could not contend that a sentence of life imprisonment without the prospect of remission could be a sentence which could be imposed in law.
In response to the second question of exercise of powers under Art. 161 and Art. 72, he submitted that there was no constitutional or legislative bar on the use of these powers on multiple occasions and the court should not intervene in this regard. He submitted that the other questions were largely premature as the State of Tamil Nadu had consulted the Union of India on the proposal to release the Respondents from jail, and the Union had merely responded by moving the Supreme Court. He submitted that it was possible that if the Union did respond and the State Government was satisfied with this response, the issues of who is the appropriate government would be moot. He stated that the questions relating to the powers of the Governor and President to consider clemency petitions had not arisen so far as no mercy petitions had been moved by the Respondents after their death sentences had been commuted to life imprisonment.  He said that the question of “consultation” and “concurrence” had also not arisen so far as the Union had not stated what it proposed to do in response to the State of Tamil Nadu’s intimation to them. He submitted therefore that this court should not decide the meanings of these terms as they were merely hypothetical questions as far as the present case was concerned.
In concluding his submissions, he made the following suggestions to the Court. (1) He suggested that the overturning of the decision in Swamy Shraddananda’s case would mean that one door for convicts facing the death penalty would be closed. He however conceded that he could not deny that Swamy Shraddananda’s case had clearly encroached upon the powers of the executive. Quoting from Bachan Singh’s case he reiterated the cautionary note in that case that judges should not to be blood thirsty and hanging a person had never done any good to the judges. (2) He implored the court to not put life imprisonments beyond the scope of review and remission by the Government. He further suggested that if the Court was to take the view that it could specify a sentence in cases where life imprisonment was being granted where the eligibility of remission was postponed or taken away, then it should only be the Supreme Court under Art. 142 which should have the power to do it. He submitted that if the Trial Courts across the country were given the power to interpret life imprisonment any way they liked, then there would be mayhem. (3) He further submitted that the Supreme Court could not encroach in any way the powers under Articles 72 and 161 as they are not circumscribed by any statute or within the constitution. He submitted however, that the court could direct that a concept of “just remission” be brought into use. He argued that the Supreme Court in a number of cases such as Rameshbhai Chandubhai Rathore has held that remission could be granted by the Government for good and sufficient reasons. He submitted that the clearest exposition of “just remission” was in Sushil Sharma’s case where the court has laid down (paras 83-84) that the remission granted would be subject to procedural checks under section 432 CrPC and substantive checks under section 433-A of CrPC. (4) He further submitted that in cases where appeals for enhancement of punishment are filed before the Supreme Court, it was necessary that the number of years of the sentence are specified. He submitted that in those kinds of cases, the Supreme Court was the last court the prisoner could approach and no scope for uncertainty should be left. (5) He further submitted that before ruling on the assumption that there was a vacuum between the alternatives of 14 years and death sentence, he urged the court to consider how different states in their respective jail manuals dealt with remission. He submitted that in the State of Maharashtra, there was a provision where for different kinds of murders, the minimum periods of incarceration were prescribed. He stated that these extended upto 60 years in cases where death was caused in gang wars. (6) He submitted that the Court could consider calling for a report of the probation officer to ascertain the conduct of the prisoner in jail to determine whether or not the prisoner’s sentence should be remitted.
He concluded his submissions by arguing that the doctrine of parens patriae was unheard of in litigation and in the Bhopal Gas Leak, it was used as a legislative mechanism. He submitted that it was important that the rule of law be upheld and this case not be treated as an exception. He submitted that this Court should deal with several questions framed by the referring court in an appropriate case and there was no need to deal with them in the present case.
Thereafter Mr. Ram Jethmalani, Senior Advocate argued on behalf of Respondent No. 1 who is also a convict in the Rajiv Gandhi murder case. He contended that since the commutation order itself stated that it should be subject to remission, it was beyond question whether it was permissible and the State Government was the appropriate authority to decide in the present case. He briefly adverted to the case of Kehar Singh which he had argued to contend that it held that the President had power to even give an opinion contrary to the decision of the Supreme Court and consider the evidence in the case afresh. He submitted that the powers of remission under the CrPC and the Constitution are concurrent powers. He submitted that his reading of Article 73 was that where a State Government could also legislate, the Central government would be excluded. He submitted that the conduct of a prisoner in jail was best known to the State Government itself and the Central Government at a distant location would not be in a position to state whether the prisoner was to be eligible for remission. He submitted in response to the first question that it did not arise in the facts of his case. He however submitted that at best the court could give a recommendation to the executive. He further stated that following the dictum in Bachan Singh’s case, death sentence could only be awarded in the “rarest of rare” cases and not merely in cases where a 14 year sentence did not seem adequate. He further submitted that Swamy Shraddhanand’s case was a violation of the doctrine of separation of powers and was based on the assumption that a life sentence was no more than 14 years. He however placed on record charts in the jail manuals in Maharashtra and Haryana to show that life sentences could in some types of cases be considered to be for upto 60 years. He further submitted that the concept of res judicata did not apply to the executive powers and refusal to exercise powers in such a case maintained the status quo and the prisoner remained under the same sentence. He concluded by stating that most of the questions referred did not arise in the facts of his case.
Thereafter, in response to notice issued to all the States, several state governments made submissions to the court. Mostly, they adopted the arguments of Mr. Dwivedi who had appeared for the States of Tamil Nadu and West Bengal. Mr. V Giri, Senior Advocate for the State of Kerala, briefly summarized his submissions following the submissions made by the counsel previously. The State of Uttar Pradesh through Mr. Gaurav Bhatia in addition to taking the court through some of the important paragraphs of the various judgments cited previously to demonstrate that the case of Swamy Shraddhanand was per incuriam Maru Ram and Gopal Godse’s cases, presented statistical data on how powers of remission had been exercised by the State. He also submitted that Swamy Shraddhanand’s cases was decided without considering any data and was based on the erroneous assumption that the States released prisoners under life sentence immediately after 14 years and exercised powers arbitrarily. He submitted that as per the data available with him, only one death sentence had been commuted by the Governor of UP in 1973 and today a total of 607 cases seeking clemency in relation to various sentences were pending before the Governor. He submitted a list of several cases of life imprisonment where prisoners were not released by the State government despite having completed over 20 years of their life sentence to show that release was not instantly done by the state after 14 years. He however informed the court that he would file the complete data as well as data relating to death sentences commuted to life imprisonment in the State of Uttar Pradesh. He further submitted that it was pertinent to note that Parliament’s intention was to leave the power of remission open as even after passing the Criminal Law (Amendment) Act, 2013 which provides for sentences for the rest of ones natural life, the powers of remission under the CrPC remained untouched. He further submitted that Swamy Sharddhanand’s case did not itself lay down guidelines nor did it identify a case where the power of the State Government or Governor had been abused. He submitted that even if a sentence for period between life imprisonment and death were to be awarded by the court, reasons would have to be given as was done in the case of Haru Ghosh.
Thereafter the Court briefly heard some intervenors in the case. One intervenor sought to trace the historical context of life imprisonment from the Indian Penal Code as originally drafted, a treatise by Sir George Rankin titled “The Background to Indian Law” as well as the Government of India Act, 1935 to state that the concept of life without remission was not recognized historically and that life imprisonment ought not to be for more than 20 years. Dr. SP Sharma who represented Swamy Sharddhanand submitted that in view of the judgment in his case, the prisoner was not let out of jail for treatment even on medical grounds. The Bench however stated that once this reference was decided, the appropriate bench would determine the individual cases and refused to entertain interventions.
The Solicitor General thereafter sought to respond to the points made over the last several days by the Respondents. He submitted that a constant refrain of all the States was the prisoner’s rights whereas there was no talk by the state of the society’s interest in punishment as well as the victim’s rights. He submitted that while it was very well to state that in cases of wrongful exercise of remission powers, the option of judicial review was available, it was not known as to who would bring this matter to court. He submitted that the victims who are not consulted in the process of remission would not be aware, and the State Government would not refer it since it was itself granting remission and hence the court would not have any occasion to consider the issue.
He further submitted that in the present case, the State Government had not shown any material to show how it is that the convicts in the Rajiv Gandhi murder case had reformed, shown good conduct or remorse and hence there was no material to state as to why they should be released. In response to the Bench’s comment that this may be a premature contention, he responded that he would answer this query in due course.
He submitted that if section 432 CrPC was to be considered as a parallel or concurrent power, it should have had a non-obstante clause which stated that it was notwithstanding anything contained in any other law or the constitution. Since this was not the wording, he submitted that this could only be a procedural and not a substantive provision. He thereafter referred to section 432(7)(a) to state that the appropriate government under it was the Central Government and section 432(7)(b) which was invoked in “other cases”, the State Government was the appropriate government. He submitted that in a case under section 432(7)(b), the power would be circumscribed by section 435(1) CrPC. In the present case, since the CBI had investigated, section 435(1)(a) would be specifically attracted. He thereafter referred to the provisions of the Delhi Special Police Establishment Act. He submitted that under section 4(2) of the DSPE Act the superintendence would be that of the Central Government and section 2(3)  gave CBI officers the power to act as police officers of that area where notified. He submitted that in this case, the State Government, through a notification of 22nd May 1991 under section 6 of the DSPE Act had itself handed over the investigation in the murder of Rajiv Gandhi into the hands of the CBI. Therefore it would not be open to the State of Tamil Nadu to state that it was not bound by section 435(1)(a) of the CrPC. The bench queried as to whether the CBI’s superintendence by the central government was only limited to matters of investigation. To this the Solicitor General responded stating that section 435(1)(a) covered offences where the investigation was done by the CBI.
The SG thereafter submitted that the provisos to Articles 73 and 162, which delineate the extent of the executive powers of the Union and States respectively, required to be interpreted harmoniously. He further submitted that there was no reference or incorporation of the provisos to articles 73 or 162 in section 432(7)(a) or section 435 and therefore it could not be assumed that the procedure under the CrPC was in any way parallel or concurrent to the constitutional powers. He submitted that there was no power under the CrPC but only procedure and even under section 125 CrPC, an illustration given by the State of UP and the Bench, there was only an interim procedure to claim maintenance, not a substantive right.
The bench said it continue hearing the matter at 2pm on 12.8.2015 (Wednesday) and it is expected that the matter will conclude then.

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