(The author of this post was present in court for the last day of arguments on 12.8.2015 but prefers this to be an anonymous post. This post concludes our coverage of the arguments in this case and I do hope that many of you found it useful. A big thank you to Nishant Gokhale for having made this possible. We do hope to bring you opinion pieces on the issues in play once the judgment is delivered.)

 The
matter was taken up today (12.8.2015) at 2 p.m., when Mr. Ranjit Kumar, the Solicitor General
(SG) continued his arguments in reply to the arguments of the Respondents.

The
SG argued that under the proviso to Article 73, the executive powers
of the union extended to matters under the concurrent list where the same was
expressly provided in the Constitution or in any law made by parliament.

Scope of Powers of State Government
Restricted under section 432(2)

The
SG argued that section 432(7)
CrPC expressly conferred greater powers on the union for matters under sections
432 and 433 CrPC. Section
432(7) defined appropriate government for the purposes of sections 432 and 433
CrPC, as is evident from the opening lines of the sub-section. He drew attention
to section 55A IPC which
defined appropriate government for the purposes of sections 54 and 55 IPC. He then contended that
as per section 2(y) CrPC,
words not defined under CrPC would have the same meaning as assigned to them
under IPC. Therefore, if the legislature had wanted ‘appropriate government’
defined under 432(7) CrPC to have the same meaning assigned to the term under
section 55A IPC, there was no need to explicitly define ‘appropriate
government’ under the CrPC. The conclusion he therefore sought to draw, was
that the legislature sought to give a more restricted scope to the powers of
the state government for the purposes of sections 432 and 433 CrPC. He drew
attention to a number of different legislations under which ‘appropriate
government’ was defined differently, and in many the scope of powers of the
state government were more restricted, including the Contract Labour
(Regulation and Abolition) Act, 1970, the Minimum Wages Act, 1948, etc.

Justice
UU Lalit put forth the proposition that the meaning of appropriate government,
and more specifically the powers of the state government, were no more
restricted under section 432(7) CrPC than under section 55A IPC. According to
him, the two sections employed two different ways of doing the same thing. While
section 55A IPC defined the spheres of both the central government and the
state government, section 432(7) CrPC defined the sphere of the central
government, and left the residue for the state government. He explained, if
there are 10 apples to be divided among two persons, one way of dividing the
apples is to say five are to be given to one person and five to the other.
Another way of dividing the apples is to say five are to be given to one
person, and the remaining to the other. Ultimately, the consequence of both is
the same.

Scope of Executive Powers of the State
Government restricted under certain provisions of the Constitution

The
SG drew attention to Articles 256,
257 and 258 of the Constitution of India
and argued that these expressly conferred executive powers on the union even
with respect to matters in the concurrent list, and thereby restricted the
sphere of powers of the states with respect to these matters. However, Justice
UU Lalit put forth the proposition that these Articles did not expressly confer
executive powers on the Union, and merely required the states to exercise their
executive powers in a manner that did not impede or prejudice the exercise of
executive powers of the union. He contrasted these provisions with Article 260, under which there was
express conferment of executive power on the union.

India has a more Unitary than Federal
Structure

The
SG drew upon a list of cases to contend that the Indian State was more unitary
than federal in structure. He used this argument to buttress his main point,
that it is the union that has primacy in the field of suspension and remission
of sentences under the CrPC.

In State of Rajasthan v. Union of India (Supreme Court, 1977) Chief Justice MH
Beg had held: “A conspectus of the provisions of our Constitution will indicate
that, whatever appearance of a federal structure our Constitution may have, its
operations are certainly, judged both by the contents of power which a number
of its provisions carry with them and the use that has been made of them, more
unitary than federal.” He further held that the Central Government is
“amphibian”, in the sense that it can move either on the federal or unitary
plane, according to the needs of the situation and circumstances of a case.

Similarly,
in State of Karnataka v. Union of
India (Supreme Court, 1977), a case relating to the powers of the
Central Government to set up a Commission of Enquiry under the Commission of
Enquiry Act, 1952 against the Chief Minister of Karnataka, Chief Justice MH Beg
saw no reason to read down the powers of the Central Government to appoint a
Commission of Enquiry against a Chief Minister. However, it must be noted that
under the Commission of Enquiry Act, 1952 the Central Government is the
appropriate government even for matters under List II and List III of the
Seventh Schedule of the Constitution of India.

In Rajendra Nagar Adarsh Grah Nirman
Sahkari Samiti Ltd. v. State of Rajasthan (Supreme Court, 2013) the Supreme Court was called upon to decide
which was the appropriate government for acquisition of land within a state for
the purpose of the railways.  Under
section 3(ee) of the Land
Acquisition Act, 1894, ‘appropriate Government’ was defined as follows: “in
relation to acquisition of land for the purposes of the Union, the Central
Government, and, in relation to acquisition of land for any other purposes, the
State Government.” The SG relied upon the holding in the case that it would be
the legislation in question that would determine the scope of executive powers,
and not the entries in the different lists. If under the Land Acquisition Act,
1894, the union was given executive powers over a subject in list III, then
even as per the proviso to Article 73, the union would have executive powers in
relation to that subject matter.  Justice
UU Lalit therefore emphasized that the fulcrum of this decision was that for
subjects under List III of the seventh schedule to the Constitution of India,
the state would have executive powers, unless the executive powers of the state
were circumscribed by legislation. The SG agreed, and went on to content that
similarly, the union’s executive powers would extend even to the subject matter
of the CrPC (entry II list III) where the CrPC so provided.  He went back to his main contention, that
under section 432(7) CrPC, the executive powers of the state government were
restricted.

Life imprisonment a ‘term’ of
imprisonment

One
intervener had argued on the previous day that the concept of life without
remission was not recognized historically and that life imprisonment ought not
to be for more than 20 years. He had argued that it is only if life
imprisonment was seen as a fixed term of 20 years would the provisions under
the CrPC in relation to set-off under section 428 make sense for persons
sentenced to life imprisonment.  The SG
sought to rebut this argument, and contended that the sentence of life
imprisonment itself was a ‘term’. One cannot say that only a fixed and
ascertainable term of sentence qualifies to be a ‘term’. Life imprisonment is a
sentence of imprisonment, whose term extends to the entire life of the individual.
He stated that it is a settled position of law that graver the crime, longer
must be the sentence, and longer is the sentence, the need for set-off and
remission only increases because of the reformative aspect of punishment.

He
further argued, that if life imprisonment was considered a ‘term’, then if a
person was sentenced to life imprisonment without remission for a certain term,
this, too would be in consonance with life imprisonment being for a ‘term’.

Justification for the lack of reliance
on empirical data

The
State of Uttar Pradesh through Mr. Gaurav Bhatia had argued on the previous day
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. The SG contended that there could not
be any data that could be taken into consideration, because a large number of
variable factors are involved in each single case, including the gravity of the
offence, the attack on the consciousness of society, etc. These factors would
differ from case to case, and therefore it was not possible to determine trends
through reliance on empirical data.

Supreme Court need not resort to Article
142

During
the arguments of the Respondents, the question arose that if the Supreme Court
were to sentence persons to life without remission for a certain term, under
which provision of the Constitution would the Supreme Court be exercising its
jurisdiction? If such a sentence could be imposed under section 302, IPC, then the
question was moot. Otherwise, the Supreme Court would have to exercise jurisdiction
under Article 142 of the Constitution of India, using its power to do complete
justice. The SG endorsed the view that it was permissible to sentence a person
to life imprisonment without remission under section 302 IPC, and that
therefore, the Supreme Court need not resort to Article 142. Life imprisonment
without remission for a term fell within the maxima and minima sentences
provided for under section 302 IPC – life imprisonment and the death sentence –
and therefore the language of 302 IPC permitted courts to sentence a person to
life imprisonment without remission for a certain term (or life imprisonment
without remission for the entire life of person).

Ray of Hope

During
the course of proceedings in the instant case, an argument had been raised by
the Respondents, that the right to life and personal liberty would require that
a person sentenced to life imprisonment must retain a ray of hope that he may
be set free at some point of time. This ray of hope was also considered to be
crucial to bring about the reformation of a prisoner, with reformation being an
essential aim of punishment. The SG argued, that the ‘ray of hope’ of a
prisoner sentenced to life imprisonment without remission, which could extend
to life imprisonment without remission for the whole life of the prisoner,
would be retained in two ways. Firstly, a prisoner who fell under the two
categories provided for under section 433A was sentenced to life
imprisonment even when there was a possibility of sentencing the prisoner to
death, or the prisoner’s death sentence was commuted. The very fact that the
prisoner was not given the death sentence was itself a ray of hope. The
prisoner would be able to live, her life was saved, and nothing is more
precious than life. Secondly, the SG argued that the ray of hope of the
prisoner was retained due to Articles 72 and 161 of the Constitution of
India, and that these powers of the President and Governor were in no way
touched by a sentence pronounced by the courts. The SG argued that the
Respondents were in fact arguing for a double commutation, and were asking for
far greater than a ‘ray of hope’. 

Justification for the Union to approach
the Supreme Court

The
SG argued, in response to Dr. Yug Mohit Chaudhry, that the union was perfectly
justified in coming before the Supreme Court under its writ jurisdiction. He
argued that the cause of action arose when the State of Tamil Nadu formulated a
proposal to release the prisoners convicted for the Rajiv Gandhi murder case
the very next day after the Supreme Court commuted the death sentence of three
of these prisoners to life imprisonment subject to remission. The only reason
stated by the State of Tamil Nadu in its letter to the Union of India was that
they had spent 23 years in prison. In such a short duration, there was no time
for Tamil Nadu to have applied its mind to the gravity of crime, number of
persons killed, number of persons injured, the terror struck and all other
relevant factors that should have been kept in mind. The Bench stated that the
matter may be premature, because it was open to the Union to have raised this
point in its reply to the letter of the State of Tamil Nadu. However, the SG
contended that the proposal itself was wrong and gave the Union a cause of
action to approach the Supreme Court.

Concluding Remarks of the SG

The
SG concluded his submissions by emphasizing the role of sentencing. He argued
that a sentence brings finality to a matter that originates upon the commission
of a crime, and is a necessary component in the administration of justice.
Whenever a crime is committed, not only the victim, but the whole of society is
aggrieved. The persons aggrieved will be satisfied only when the matter reached
finality, which is possible only when an adequate sentence is imposed on the
perpetrator of crime.

Thereafter,
Mr. Dwivedi, counsel for the State of Tamil Nadu sought to
submit surrebuttals to the arguments of the SG. However, the Bench decided to
conclude the hearing in the matter, and permitted the Respondents, and all
States to submit written arguments within a week.