[Day 2] Constitution Bench Reference in Union of India v. Sriharan

 [The report of the arguments on Day 2 is once again by Nishant Gokhale]
Continuing from yesterday’s post, the Solicitor General
continued his arguments today (Thursday, 23rd July 2015).
He relied greatly on the judgment in Maru Ram’s case.
He argued that this judgment would be read to mean that the power under Art. 72 and Art. 161was de hors the power under sections 432 and 433-A of the CrPC. He stated that this case had rejected the
challenge to section 433-A as a violation of Article 14. However, the Court in
that case had questioned the legislature coming to the conclusion that a
minimum amount of 14 years would have to be spent by life convicts as being
“penal superstition” as no scientific or research material had been placed by
the state to support this period of confinement. However, he argued that the
court had concluded that the long penal incarceration for persons convicted of
grave offences was not invalid.
The Solicitor General however, was called away due to a
family emergency and despite his return after a short while, was asked by the
Bench to spend time with his family. In the meantime and thereafter, Ms. V.
Mohona, Senior Advocate and thereafter the Advocate General of Karnataka
addressed arguments. They were mainly aggrieved by the stay order passed by
the Supreme Court on 9.7.2014 and implored the court to consider modifying their
order. Mr. Rakesh Dwivedi, Senior Advocate appearing for the State of Tamil
Nadu suggested that the stay be vacated for those persons to whom this
reference did not affect (such as those who had not applied so far for
remission at all despite having served their sentence). All the counsel were
willing to accept  the submission of the Court that persons convicted
of sexual offences would not get the benefit of this interim order. Mr. Rakesh
Dwivedi, Senior Advocate even suggested that he would not even ask for interim
relief for those persons who had been prosecuted by the CBI or the individuals
who had been convicted in the Rajiv Gandhi murder case. The Court directed all
the counsel for the States to take detailed instructions in the cases for which
they seek to get the stay order modified. 
The court thereafter passed interim orders modifying their
previous order to permit State governments to consider remissions to be granted
to life convicts who had undergone 14 years or more of imprisonment. The court
however directed that this order would not apply to those prisoners who have
been sentenced to imprisonment for the rest of their lives or for a specific
period such as 25 years. This order would also not apply in cases under TADA or
by the CBI or cases involving rape and murder. This order will now enable State
governments to start considering cases for remission for persons who have
served a long periods of imprisonment which had come to a complete standstill
since the courts interim orders last year.
Thereafter Mr. Rakesh Dwivedi, Senior Advocate appearing for
the State of Tamil Nadu was called upon by the Bench to addresses the questions
raised in the reference. He was asked to address the court on the second
question as to whether the power under section 432/433 could be excercised
after a parallel power had been exercised by the President under Art. 72 or
Governor under Art. 161 or this  under the constitution. He submitted
that although the powers exercised were indeed parallel, the power exercised by
the Governor and President under the Constitution of India was at a higher
constitutional plane than that exercised by the “appropriate government”
assuming it to be the State government under section 432 or 433 of the CrPC. He
said however, this question does not arise for the cases of those convicted
under the Rajiv Gandhi murder case as the convicts there were sentenced to
death initially and thereafter their sentences were commuted to life imprisonment
by an order of the Supreme Court. He said that while the earlier powers of
mercy and remission were sought to be exercised for the sentence of death,
nothing precluded them from having a fresh consideration of their cases by the
executive authorities after their sentences had been altered by the court as
that would amount to a change in circumstances.
The Bench asked whether this power, once exercised by the
executive, would get exhausted? Mr. Dwivedi stated that these powers, if once
exercised by each authority would ordinarily get exhausted but would be
available afresh if there was a change in circumstances. To this the court
asked as to what the circumstances for seeking fresh exercise of this power
could be and observed that this could be a highly subjective criteria. The
bench observed that for the prisoner, every small change would be a change in
circumstances and drew parallels to bail jurisprudence where prisoners apply
for bail at the drop of a hat. Mr. Dwivedi responded by saying that while this
list could not be exhaustive, it ought to include supervening circumstances
such as terminal illness, alteration of punishment and that the change in
material circumstances.
As regards the exercise of power under Article 72, he argued
that this power was broader than that granted under section 432. On the
meanings of the term “remission”, “pardon”, reprieve etc. Ms. V. Mohana Senior
Advocate interjected and stated that the Law Commission’s 41st Report referred to these terms in paragraph 29.5 but Mr
Dwivedi stated that these would be read at length later. Mr. Dwivedi relied
upon the case of GNCTD v. Prem Raj (2003) 7 SCC 121 in which it was held that
even pardon, which was an act of grace, could be subject to conditions and was
not unconditional.
The Bench asked whether it was possible to restrict the
application of powers under Article 72 and 161 as it was observed that mercy
petitions were sent repeatedly to the President and Governor by the same
prisoner. Mr. Dwivedi replied stating that any restriction on these powers
would have to be done through constitutional amendments and not by a dictum of
the court. He said that there was a considerable amount of debate in the constituent
assembly about these provisions, and while he would take the court through this
at a later stage, it was at this stage sufficient to say that the framers of
the constitution could have said that adding one more line was easy but not
done for a reason.
On the first question as to the duration of life
imprisonment, he submitted that while it was permissible in the USA and UK to
give life sentences without parole, this had been prohibited in Mexico, Germany
and some other countries in Europe as being contrary to human dignity. He
implored the court to rule out this possibility of considering sentences of
life imprisonment without parole. He submitted that such a sentence would be
only due to sheer retributiveness and would totally rule out any chance of
reform. He submitted, borrowing an expression by the bench, that while entering
prison for a long sentence, the prisoners would feel as if they are entering a
dark tunnel whereas a chance of remission would offer them a ray of light which
was a reason to rehabilitate themselves.
He submitted that he did not have any objection to the court
ruling that a sentence of life imprisonment would be for the whole life of a
person, but the power of remission could not be taken away. He said, in the
words of the Maru Ram judgment, the powers of Art. 72 and 161 of the
Constitution are “untouchable” and “unapproachable” and therefore the court
could not take away this. He argued that the prisoners have a right to be
considered for remission which was guaranteed by the constitution and therefore
the courts could not deprive him of it. To support this he relied on the case
of Krishnan v. State of Haryana in which the precise question that has been raised and
referred to a larger bench is whether section 32-A of the NDPC Act which prohibits the convict from seeking remission,
suspension or commutation of the sentence is violative of Art. 72 and 161 of
the Constitution.
The Bench to this asked, in especially gruesome cases why it
should not be open to them to impose an exemplary sentence for a very long
period of time without remission under Art. 142 of the Constitution. In response, Mr. Dwivedi said
that the power under Art. 142 could only extend to punishments which were
prescribed for by law and could not travel beyond the law to give a new type of
punishment. He also said that the power of the Supreme Court under Art. 142 was
not the power to amend the constitution or legislate and the only possible
solution to enhance punishments was by parliamentary legislation.
The Bench thereafter asked what prejudice would be caused to
the convict if a long life imprisonment without remission is given in a case of
murder where the option to punish ranges only between death or life
imprisonment. The bench stated that in such a case, the court by not awarding
the death sentence was awarding a lesser of the two punishments. Mr. Dwivedi
responded to this stating that this would amount to tinkering with the
accused’s constitutional right to be considered for remission. He submitted
that this would also make it a very subjective standard, especially if lower
courts were allowed this play in the joints as the sentence may well depend on
the anger that the courts felt at the crime. He implored the court to not make
life imprisonment completely unreviewable as such a punishment would itself be
de-humanising. He also urged that the court consider not only the crime for
which the convict was being punished, but also the circumstances of the convict
and the steps taken by the convict towards reformation. He said that while the
Court appeared to be looking to create some sort of exception within the
“rarest of rare” standard even in death penalty cases as expressed in the case
of Swamy Shraddhanand v. State of
, the court could not, even if it wanted to, take
away the powers of remission under the constitution. He also submitted that if
in death cases, there are well established and mandatory requirements to enable
the prisoner to ask for mercy even after the sentence of death had been
confirmed by the Supreme Court, why life convicts should be deprived of this
executive review of their cases.

Arguments in the matter will continue on Tuesday, 28th May

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