(We could not blog about the hearings in this matter on 29.7.2015
and 30.7.2015 as the Death Penalty Litigation Clinic, NLU Delhi
was involved in the proceedings in Yakub Memon’s case before the Supreme Court. Nishant Gokhale continues to blog on the arguments in Sriharan) 

The arguments today (4th August 2015) were continued by the State of Tamil
Nadu through Mr. Rakesh Dwivedi, Senior Advocate. The Solicitor General had on
30.7.2015 concluded his arguments and Mr. Dwivedi had started addressing some
of the questions referred to the Constitution bench.

Mr. Dwivedi addressed arguments on the issue of
“consultation” which was question no. 7 in the order of reference to the
constitution bench. He argued that “consultation” was an ongoing process and
not merely a one-time action. He submitted that the legislature in the CrPC had
knowingly used the term “consultation” as opposed to “concurrence”. He placed
the judgment of S.R. Bommai v.
Union of India before the court to support his contention that federalism
was considered a basic feature of the Constitution and States were not
subordinate entities in the federal structure. He therefore submitted that the
State government consulting with the Central Government could not be read to be
a surrender of power by the States to the Centre.

He argued that notwithstanding the fact that the Centre has
a wide power in the federalist scheme, once it is held that a particular
activity is within the domain of the State’s power, then the Centre cannot act
on it. He submitted that since, in the present case, there was no conviction
under TADA, consultation was felt necessary by the State of Tamil Nadu only
because it was an issue which was vital to the Centre. He beseeched the court
to not take away the powers of the state by interpretation but rather to let
legislative processes operate by means of legislations or ordinances. He
submitted that if the Centre did indeed want to exercise power which was with
the States, they would be free to use legislative means to try to achieve this.
He submitted that states (Provinces as they were earlier) were important units
in the federalist set-up and their judgment was usually deferred to as they are
believed to be better aware of ground realities relating to exercise of
executive power.

Mr. Dwivedi submitted that the question of whether or not
remission should be granted or not was a function of factors such as the
conduct of the prisoner, whether the prisoner had shown signs of reformation
etc. and not which government was the appropriate government. He countered the
submission of the Solicitor General who had stated that since the CBI had
conducted the investigation, all the relevant material would be with CBI, by
stating that since the power in this case vested with the State Government, it
was obligatory for the CBI to make this material available to the State rather
than the Centre appropriating the powers of remission. He further submitted
that since the prisoners in this case were incarcerated in Tamil Nadu, material
relating to their reformation and conduct in jail would be available with the
State Government, and hence the State should have the final say in whether or
not remission should be granted.

Mr. Dwivedi further submitted that the reformative aspect of
punishment assumes greater significance when a longer period of imprisonment
has been served rather than other penological objectives such as retribution or
deterrence. He submitted that in the present case, there were three significant
events which had led to changed circumstances which warranted a re-look at the
case of the prisoners in the Rajiv Gandhi murder case. Firstly, the death
sentence had been commuted to life by the Supreme Court, secondly, the LTTE as
an outfit had been considerably weakened if not destroyed, and thirdly, that
for over 10 years the government to which Rajiv Gandhi had belonged had been in
power and had chosen to take no steps for the execution of the prisoners and
therefore now that a different party is in power at the Centre, attitudes towards
this case may have changed. He submitted that by taking away the power of
granting remissions, there would be a transgression of rights of the prisoners under
Art.
72 and Art.
161 and recognizes the prisoner’s fundamental right to be considered
for parole/remission/suspension or commutation. He further submitted that these
rights are recognized in international law.

Mr. Dwivedi thereafter addressed arguments on the issue of
“appropriate government”

He submitted that the State Government would be the sole
executive power and in order for the Central Government to take over this
executive power, it would be firstly necessary for the Central Government to
enact a law and secondly, in this law, expressly state that this power has been
taken over. For this he drew on the proviso to Article 162 and 432(7)(b). He submitted that
under Article 162, the power of the State extended to all areas where the
States were competent to enact laws except where the Centre had specifically in
the constitution or by law made by parliament been conferred this power. Under
section 432 also, the scheme appeared to be one where except where provided for
in some instances, the States would have the power to suspend or remit
sentences.

He submitted that as held in the case of G.V. Ramaniah v. Superintendent,
Central Jail, that although IPC was enacted under Entry 1 of List III of
the VIIth Schedule, it was an aggregation of a variety of offences, some of
which wherein List I and some in List II. He submitted that while for some
offences, such as those relating to coinage, it would be easy to identify which
List of Schedule VII they would fall in, offences such as murder would be
harder to classify. He submitted that it would have to be determined whether
the offence of murder was one of murder simplicitor or murder which affected
public order.

He submitted that 55-A IPC- which was sought to be deleted
by Law Commission, but retained by Parliament, also defines who the appropriate
government is. He also submitted that under section 434 CrPC, it has been
expressly stated that in cases where death sentence is awarded, the power can “also
be exercised by the Central Government”. He argued that despite a number of
cases where there was a dispute inter se State Governments as to which state
should exercise the powers of remission, the Central Government did not
interfere or even raise an issue about the extent of its powers.

He thereafter relied upon the Constituent Assembly Debates to
explain the debate on Article 72 as it stands now. He further relied upon the
writings of Mr. HM Seervai on the issue.

He thereafter relied on a number of cases to show how where
the powers vests with both the Centre and States as per Schedule VII of the
Constitution, the Centre would have to make an express declaration of the
State’s power which it was taking over, the should specify the extent of the
take over of the State’s power and also be construed strictly. He therefore
submitted that every time the Centre exercised power over something that was
ordinarily a State subject, it would be a whittling down of the State’s power
and therefore would have to be read strictly. To emphasize this point, he inter
alia placed the judgments of Monnet
Ispat and Ishwari Khetan
before the court.

The Bench raised a query as to what would happen in the
present case as some of the prisoners were foreign nationals, were  convicted under legislations dealing with
arms and explosives. Mr. Dwivedi responded by stating that while no doubt these
topics were part of the Union List, all the prisoners had already served out
their terms for their convictions under these offences. He further submitted in
response to the Bench’s query that while Entry 8 of List I spoke about the CBI,
reading it with Entry 93 of List I would only cover offences against the CBI
and not investigation carried out by it.

He thereafter commenced to address the court on the second
question referred to the Constitution bench. He submitted that there ought not
be any bar on exercise of powers again, even if they had been already
exercised. To this, the bench responded that it may lead to a situation where
the court would have to entertain a prisoner under the sentence of death, not
just till the time his legal remedies were exhausted, but actually until the
prisoner himself was exhausted of availing judicial remedies. Mr. Dwivedi
submitted that he would address the court on this issue at a subsequent time. He
further submitted that it was possible as in the present case where a different
power was sought to be exercised. In the present case, the power previously
sought to be exercised was one of commutation and now the power sought to be
exercised was one of remission. The bench rose for the day at this point and
will resume again on 5.8.2015.