[Nishant Gokhale continues to document the arguments in this case]
 

The arguments today (5th August 2015) were continued by the State of Tamil
Nadu through Mr. Rakesh Dwivedi, Senior Advocate.

Continuing on the second question referred to the
constitution bench, Mr. Dwivedi argued to counter the argument of the Solicitor
General that the power of mercy could not be exercised repeatedly. He submitted
that the CrPC and the Constitution permitted filing of more than one mercy
petition even though it may have previously been filed and decided. He
contended that section 433-A itself contemplated a fresh exercise of the power
of remission where a sentence of death was commutated to one of life
imprisonment. He submitted that Kehar
Singh’s case had laid down the law that the exercise of powers under
Articles 72 and 161 could not be governed by judicial dicta. He further
submitted that in the case of G
Krishtha Goud v. State of Andhra Pradesh, it was held that the rejection of
one clemency petition does not exhaust the power of the President and Governor.
He argued that it would be open to exercise the powers under section 432 and
433 even after the exercise of powers under Article 72 and 161 of the
Constitution. He argued that this was a fit case where circumstances had
fundamentally changed as the LTTE was considerably weakened and its head who
was named as an the main conspirator had been killed.

Responding to the queries of the Bench on whether the
practice of filing repeated mercy petitions and also petitions challenging its
rejection needed to be checked, Mr. Dwivedi submitted that there appeared to be
no material placed by the Union to show that this had caused any problems or
delayed the execution of the death sentence. He submitted that in death
sentence cases, even if some delay was caused, it should be accommodated as the
condemned prisoner was clutching to life. He submitted that in such cases, the
benefit of the doubt should go to the prisoner since the death sentence is
irreversible. He pointed out that in case of death sentences, the Instructions
issued by the Ministry of Home Affairs and several jail manuals only required that
an automatic stay of execution only be granted after the first mercy petition
had been sent and for all other subsequent petitions, an order of stay would
have to be asked for from the courts or the executive. He submitted that if the
concern was that the Supreme Court would be overburdened by cases of prisoners
who were seeking to delay the date of execution, he said a change could be made
in the Supreme Court Rules to limit the number of times petitions challenging
decisions rejecting clemency could be filed. He submitted that the States were
competent authorities to deal with clemency petitions at their own level by
appropriately advising the Governor. He submitted that if the Union was in any
way aggrieved, it was always open to them to amend both the CrPC as well as the
Constitution as neither currently imposed a bar on the number of petitions
which could be filed. When the Bench suggested that they could, in their
judgment indicate that they would want to cap the number of times a clemency
petition could be filed or challenged, he implored them to not do so as that
would be interfering in the legislative domain. He submitted that in the
present case, they are not dealing with any cases of death sentence as the
prisoners who were sentenced to death have had their sentences commuted to life
imprisonment and therefore these observations, if made, would be wholly out of
place if made in this case.

Mr. Dwivedi further submitted that it was highly improbable
that if the power of remission was left to the State Government, it could be
misused by the Governor. He relied on Article 167 of the Constitution
which outlines the duties of the Chief Minister and the debates that took place
on the Governor’s powers in the Constituent
Assembly (Article 147 of Draft Constitution). He submitted that the
Governor could not over-rule the Ministers but could only warn, suggest or
advise the ministers on the course of action adopted or to be adopted. On a
query by the court, however, he conceded that he was not aware of a case where
the Governor had exercised the powers under Article 167 (c) of the Constitution
to send a decision to grant or withhold remission by a Minister back to the
Council of Ministers for reconsideration.

While addressing arguments on question No. 6 referred to the
constitution bench, Mr. Dwivedi submitted that it was not necessary for an
application under 432(1) to be moved as it uses the term “anytime”. He further
submitted that in the case of Mohinder
Singh v. State of Punjab no application had been submitted and the State
had initiated action suo moto. He
submitted that the power under section 432(1) was the procedural portion and
was a complete power in itself.

On the issue of the power under section 432(2) he submitted
that this power was discretionary and required an application to be filed as
stated in the sub-section. He stated that despite the Law Commission’s
recommendations on the previous CrPC (where 432(2)corresponds to section
401(2)) the legislature had chosen not to take action to make this a mandatory
power. The Law Commission had expressed its view in the 35th
Report (paragraph 1085), the 41st
Report (paragraph 29.4) as well as the 48th Report
(paragraphs 46 & 47). He also submitted that the wording of section 432(2)
was problematic as it was unclear as to which court’s opinion would be taken
(the sentencing or confirming court), if this opinion would be a judicial or
administrative order and what was meant by the term “Presiding Judge” as used
in the sub-section. He submitted that in cases under TADA, the Supreme Court
was itself the confirming court and it would have to be the Presiding Judge of the
Supreme Court (the Chief Justice or the senior judge on the bench which
confirmed the sentence) who would have to give an opinion on the issue of
sentence. He submitted that the decision of the Full Bench of the Punjab High
Court in the case of Hukam Singh
v. State of Punjab clearly held that the provisions of 401(2) of the Old
CrPC was not a mandatory provision.

Addressing arguments on the first question referred to the constitution
bench on the interpretation of life imprisonment, he submitted that the power
under section 432 CrPC permitted remission of the whole sentence. He submitted
that the term life imprisonment should be interpreted to mean life imprisonment
for the natural life of the prisoner subject to the powers of remission under
the CrPC and the Constitution of India. He further reiterated that while the
prisoner did not have a right to be released, he had a right to be considered
for remission. The bench however wondered if this right would trump the right
of the victims to get justice. The bench thereafter referred to the queries
raised in Swamy Shraddhanand’s case and asked Mr. Dwivedi whether (1) the Court
could impose a sentence beyond the power of remission and (2) whether in the
absence of a life term which was perceived to be harsher than 14 years, judges
would be nudged towards awarding death sentence.

Mr. Dwivedi argued that if courts were empowered to put life
sentences beyond the scope of remission, then it would amount to repealing
section 432 and 433 of the CrPC. Further, he submitted that across the world,
wherever life imprisonment had been imposed for a fixed term, it was through
legislation and not through judicial decisions. He submitted that there was no
principled distinction which could be drawn between cases where life
imprisonment without remission for 30 years was awarded and cases where a fixed
period of sentence of 21 years was awarded although the crime seemed more
heinous and brutal in the latter case. He highlighted that there would be a
danger in courts entering this area as it dealt with sentencing policy and
would require courts to venture into the legislative domain. In response to the
Bench’s suggestion that they were empowered to pass any sentence in between
life imprisonment and death sentence, he responded stating that the option was
either life imprisonment or death sentence. The courts could not, of their own,
determine how much the quantum of life imprisonment should be. The Bench asked
as to why the Court could not ensure that some persons accused of extremely
grave offences should ever be released from jail at the time of sentencing
itself. To this, he responded that the stage of sentencing was not the time to
make that determination as to whether or not they should or should not be
released from jail as that was to be seen from the effect that the punishment had
on the prisoner as regards reformation. He further submitted that to set a
minimum amount of period before which remission could be granted would amount
to the judiciary amending section 433-A. He submitted that he had no problem if
the legislature carried out the requisite amendments, but it was not the place
of the courts to do it.

There was an animated debate between him and the bench as to
what would be the appropriate quantum of sentence to which he conceded that
perhaps seeking the opinion of the judicial officer under section 432(2) could
be made mandatory. However there was disagreement on the issue of what the
weight of this opinion would be. Mr. Dwivedi however, submitted that such a
provision was not there in commutation of sentences under section 433 CrPC and
the only possible recourse would be for the Union to seek instructions to amend
the CrPC and Constitution. He submitted that since the Union was purportedly
acting on behalf of the victims under the doctrine of parens patriae, it would
be shirking its duty by not seeking legislative amendment to the provisions
which aggrieve them rather than calling for the Courts to bring changes into
what was clearly legislative domain.

The bench rose for the day at this point and will resume
again on 6.8.2015.