Constitution Bench Reference in Union of India v. Sriharan

(The Centre on the Death Penalty at National Law University, Delhi will be posting daily reports of the arguments in the Constitution Bench matter in Union of India v. Sriharan)

[The report of the arguments presented on 22nd July 2015 is by Nishant Gokhale. Nishant graduated from NUJS Kolkata in 2011 and joined the Death Penalty Litigation Clinic at NLU Delhi in April 2015]

The Supreme
Court today heard the reference made by a 3 judge bench to the Constitution
Bench in a case which involves the fate of the persons who have been convicted
of killing Rajiv Gandhi. Tied to their fate also, are the cases of several
other prisoners who have been sentenced to life imprisonment.
On 18.2.2014,
the Supreme Court of India in the case of V. Sriharan v.
Union of India
commuted the death
sentences granted to the persons convicted of assassinating Rajiv Gandhi to
life imprisonment subject to remissions as they may be eligible for under the
CrPC. On the very next day, i.e. 19.2.2014, the State of Tamil Nadu wrote a
letter to the Union of India stating that it was proposing to release 7 persons
convicted for the assassination of Rajiv Gandhi and requested that the Centre
communicate their views to the State within 3 days. Against this action the
Union of India approached the Supreme Court asking that this letter dated
19.2.2014 be quashed. The Supreme Court in the case of Union of India v.
V. Sriharan
referred the
questions raised in this case to a larger bench of 5 judges to determine
various questions which have been raised through this petition.
The questions
before the Bench which is headed by the Chief Justice of India are questions of
constitutional importance which deal with the issue of the powers of the
President and Governor to grant mercy as well as the determination as to who is
the appropriate government to commute the sentences under the CrPC. This also
considers important questions raised in the case of Swamy Shraddhanand
v. State of Karnataka
where the Supreme
Court considered whether there was another alternative between life
imprisonment (which it found may be too less if it is only for a few years) or
death which they found to be too harsh and irreversible. This reference to the
Constitution Bench therefore is also hearing questions relating to what should
be the length of life imprisonment and whether these can take away the power of
the executive to grant remissions, reprieve, commutations etc. This case is
being closely watched as it has questions of constitutional significance as
well as for the political overtones it may have. The case is also being
followed closely inside jail by persons serving life sentences as the Supreme
Court on 9th July 2014
prohibited the State governments from granting remission to life convicts till
the disposal of this case.
After the Supreme Court yesterday refused to
go into the preliminary objection the State of Tamil Nadu had that the Union of
India cannot have fundamental rights enforceable under Article 32 against the
State of Tamil Nadu and that this should have been brought under the Supreme
Court’s original jurisdiction under Article 131, it was decided that the matter
would be heard on merits. Today the Solicitor General of India, Mr. Ranjit
Kumar (“SG”) opened arguments by laying out the constitutional and statutory framework
for exercise of powers of remission.
Articles 72 and 161
He said that the power of the President to
commute sentences was broader in Art.
as it had 3 limbs 72(1)(a) which deals with
court martials, 72(1)(b) which deals with all cases where punishment of
sentence is for an offence to which the executive power of the Union extends
and 72(1)(c) which deals with death sentences. Art. 72(3) is a non-obstante
clause which states that despite 72(1)(c), the Governor’s power as regards
death sentences is not taken away where it is specifically provided for by a
law for the time being in force. He read Art.
to state that it is similar only to 72(1)(b)
and had nothing specifically to do with death sentences or court marshals and
the Governor could only interfere in death sentence cases as provided for by
law. His reading was that 72 was the broadest power and 161 only where law
provided a Governor could act in a situation where the State’s executive power
extended. He said that the CrPC specifically empowered the state government in
some cases which would be adverted to later, and outside of this the Governor
could not have power, atleast as far as death cases are concerned.
Extent of Executive Power of the Union and the
He said that the extent of executive power was
explained in Art.
(Union) and Art.
(States). However, he said that it was a
settled proposition that the Union can legislate on a subject in the State List
where it is in the national interest (Art.
), during emergencies (Art.
) or by consent of the states (Art.
) He therefore argued that since criminal law
and criminal procedure are in the Concurrent List, there is no bar at all which
operates on the extent of the Union’s executive power.
Mercy and Governors
On a question from the bench that the power in
relation to death sentences appeared could be simultaneously exercised, the SG
admitted that it would be an embarrassing position if the President has
rejected the mercy under a State legislation (such as Maharashtra
Control of Organised Crime Act

which provides for death penalty) and thereafter if the Governor was to be
approached for a decision. The SG later during the hearing read out the MHA
Guidelines on disposal of Mercy Petitions which states that the Governor would
first have to dispose off the mercy petition before it went to the President.
On being asked about a possible overlap in the
jurisdictions, he said that the Law
Commission’s 41st Report

(para 29.6) which said that the Government of India Act, 1935 had section
which divided powers between the Governor
General-in council and the Crown. While the Constitution has bunched both these
powers together and there seems to be an overlap, this overlap is not harmful.
He however said that he would reference Constituent Assembly Debates about
these articles later during his arguments.
IPC Provisions
He then moved to the IPC where he read out some
provisions such as sections 6, 7, 17 to set the context. He then argued that section
which defines “life” as the life of
a human being would mean that life imprisonment was for the rest of the life of
a person. He then read the punishments under section
where life imprisonment is one of the
punishments prescribed. Section
provides the “appropriate
government” with the power to commute death sentence to any other
punishment provided for in the IPC. Section
provides the “appropriate
government” the power to commute life imprisonment to any other sentence
not exceeding 14 years imprisonment. Section
defines the appropriate government as being
the Central Government where the Union’s executive power extends and the State
Government where the State’s executive power extends as well as the state where
the offender is sentenced. He said that therefore it is important that for the
State to be the appropriate government, the issues of extent of executive power
as well as situs of the trial would be material. 
He further argued that under section
, when calculating fractions of imprisonment,
life would be considered to be 20 years. Section
states that where a prisoner has not been
able to pay fine, no more than 1/4th of the total period could be imposed as
the sentence in default.
He argued that sections 392, 222, 457 and 458 specifically used the term “fourteen years” for the
maximum period of punishment, whereas the offences introduced under the Criminal
Law Amendment Act, 2013
in section
370(6) and 370 (7), 376-A, 376-D, 376-E use the term for “the remainder of
that persons natural life”.
To this the bench pointed out that before the
2013 Amendment there does not appear to have been the use of the expression
“the remainder of that persons natural life”. The bench also remarked
if then life imprisonment such as that prescribed under section 302 mean
something lesser?  The SG however said
that the meaning of the term life imprisonment was very clear as laid down by Gopal Godse’s case and Maru
Ram’s case
CrPC Provisions
Coming to the provisions of the CrPC, the SG
contended that the difference between section 432 and 433 was that while the former only kept the sentence in abeyance,
the latter waived the sentence entirely. There was some debate about whether
this would mean that the conviction and sentence would both go away or remain,
but nothing conclusive was said nor any authorities cited.
As regards 433-A it prescribes that for commutation of sentence of life into a
lesser sentence, no less than 14 years would actually have to be served. This,
he argued, was in conformity with section 55 of IPC.
Regarding section 434 which grants the Center concurrent powers of remission the
State government he submitted that this did not impose any bar on the Centre
from extending this its executive power. He insisted that in this case, the
refererence related to section
which requires the State Government to act in
“consultation” with the Central Governments for an offence
investigated by the CBI as in the present case for Rajiv Gandhi’s murder. While
the bench said that the term consultation now had a judicially recognized meaning,
the SG stated that he had only raised it as a specific question had been framed
in the reference.
Exercise of powers by the Court:
The SG informed the court that the Supreme
Court in a few cases had directed that the that life imprisonment be given
without remission, or had fixed a period of life imprisonment between 35-25
years imprisonment or even directed that the period of remission would not
start until a certain amount of time had been spent in jail.
The Solicitor General will continue his arguments tomorrow (23rd July 2015).


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