[Day 3] Constitution Bench Reference in Union of India v. Sriharan

[The report on arguments presented on Day 3 of the hearings (28.7.2015) is by Nishant Gokhale]

The Constitution Bench continued hearing the matter today.
The Solicitor General was asked to continue his arguments today by the Bench
from the point where he had left off on the previous date of hearing, i.e. 23rd
July 2015.
At the outset the SG pointed out that the curative petition
in the case of V. Sriharan
v.  Union of India
challenging the
commutation of death sentence to life imprisonment was pending before the court
today. When asked by the Bench whether that would change anything, the SG
conceded that since the reference raised larger issues, they would have to be
addressed, but if the curative petition were to be allowed, then in the facts
of this present case, the issue of the power of the State Government or Central
government to grant remission would become moot. However, the Bench requested
him to proceed on the issues raised in the reference.
The SG proceeded to address the court on the Maru Ram case, urging
that some conclusions in that case required to be revisited by this Bench. He
submitted that while it was now beyond dispute that life imprisonment meant
imprisonment for ones whole life, it would have to be seen how the power to
grant remission would require to be construed in cases of life imprisonment. The
SG submitted that there was a finding in the Maru Ram case that section 433-A
of the CrPC could be treated as a guideline for exercise of powers under Art.
72 and Art. 161 of the Constitution thereby implying that it should ordinarily
not be exercised in cases where 14 years of a life sentence had not been
served. He further sought to draw support from the opinion of Justice Krishna
Iyer in this case, where he describes sections 432 and 433 of the CrPC as being
“modus operandi” of the powers under the Constitution. The bench however raised
the query as to whether this was merely obiter dicta as the conclusion
eventually reached was that these could act as a guidance for the exercise of
constitutional power under Article 161. In response the SG stated that this
position requires to be revisited as it was settled law that the power of these
two high constitutional functionaries could not to be curtailed by the CrPC. He
argued that the CrPC being merely a procedural and not a substantive law, could
only lay down procedure to be followed but could not in any way curtail the
powers of the Governor and President under the Constitution. He answered the
query raised by the bench stating that there did not seem to be any conflict
between the power available under Article 161 and the power to the State
Government under the CrPC. He said that the CrPC was a subsequently enacted
legislation and it would be presumed that the persons who drafted the CrPC knew
about the powers and scope of Article 161 and therefore the powers of the State
Government would always have to be read as subservient in the constitutional
scheme. The SG thereafter read the case of Ashok Kumar @ Golu v. Union of India
(1991) 3 SCC 498 which held that the observations in Maru Ram’s case that
guidelines be framed in the case of exercise of powers under Art. 72 and 161
was merely obiter dicta and could not be considered to be in conflict with Kehar Singh’s case which has
said that the power of pardon under Art. 72 is a high constitutional power
which can operate in myriad ways and does not require any specific guidelines
to be laid down.
In response to a query from the bench as to whether the powers
of the Governor and President were to be exercised by them alone, the SG submitted
that there was not a single instance 
that could be pointed out where from 1961 till 2014, where it could be
shown that the President or the Governor had “acted on their own”. He submitted
that there was a constitutional bar on even the President to act contrary to
the aid and advice of the council of ministers under the Constitution. In his
support he read out Articles 74
and 77 of the Constitution
which required the President to follow the aid and advise of the council of
ministers and to frame rules of business for the government. He further drew
support from Article 53 of
the Constitution which states that the executive actions of the Union were to
be carried out by the President or officers subordinate to him. He mentioned
that the advise tendered by the council of ministers would be similar to he
advise tendered under the CrPC and therefore it could not be said that sections
432 and 433-A  conferred any special powers
upon the executive.
On a query by the bench, the SG admitted that Art. 72 and
161 did have some linkage with sections 432 and 433 of the CrPC and that it
would be open to the prisoner to approach the same authority if there was a
change in circumstances. On being asked by the bench as to what these
circumstances could be, the SG submitted that these would mainly be a long
period of incarceration, conduct in prison, health status of the prisoner,
signs of reformation etc. and that these should be weighed by judicial
determination as prescribed under section 432(2) of CrPC. The SG contended that
while section 432(2) was only for remission and suspension of sentence and used
the word “may”, but , argued that this word ought to be used as “shall” to
section 433 which deals with commutation of sentence. However, the Bench
however, identified several pitfalls such as lack of clarity as to which would
be the appropriate court and if 161 and 72 powers could be exercised, even
after the stat government has commuted the sentence based on judicial
determination, it would still be subject to review by executive authorities,
which could lead to embarrassing positions for the judiciary.
The SG thereafter started addressing the court on the first
question raised in this reference. The SG argued that the courts in the past
had  in several cases resorted to
creative sentencing in some cases where consecutive sentences were handed out
or where the prisoner after being found guilty had been spared the death
penalty on a submission made by him that he would not seek remission for his whole
life. The SG was thereafter reading from the case of Swamy Shdraddhanand and
submitted that the bench was looking to create a rung in between death penalty
and life imprisonment for a period of 14 years.
The SG will continue his arguments tomorrow (29.07.2015)


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