The arguments today (6.8.2015) continued with Mr. Rakesh Dwivedi,
Senior Advocate arguing for the State of Tamil Nadu.

The Bench was considering alternatives on how sentencing
could be carried out so that as stated in Swamy Shraddananda’s case it was
neither too less nor too harsh. Mr Dwivedi submitted that paragraph 91 of Swamy
Shraddananda’s case (paragraph 67 of hyperlink) required the Court to consider
if a separate category of “sentence” could be awarded in some cases. He
submitted that this judgment was in the context of where life imprisonment was
being awarded in lieu of the death sentence. He submitted that therefore while
creation of a new sentence would be within the legislative domain, it would be
open to the court to only award the sentences prescribed by law and that these
sentences would necessarily be subject to provisions under the CrPC and
Constitution of India. He submitted that any sentence which deprived the
convict of the possibility of remission would severely prejudice the convict.

The Bench however questioned as to why this would prejudice
the convict as in many cases, the court was giving a sentence lesser than death
which was the maximum penalty in law. He submitted that putting the sentence
beyond the pale of remission would deprive the prisoners of their right to be
considered for remission which presented “a ray of hope” for the prisoner.  To this, the Bench suggested that they could
think of passing a sentence where the matter could after a period of about 20
years come back to them to determine whether or not remission should be made
applicable.

In exploring further alternatives, the Bench looked at the
case of Subhash Chander v.
Kishan Lal where the convict who was to be sentenced to death instructed
his counsel that he would be willing to accept a sentence of life imprisonment
without remission under the CrPC or the jail manual or similar rules. Mr.
Dwivedi however submitted that such consent may be given by the prisoner in terrorem, as many people would choose
any alternative punishment rather than the death penalty. He implored the court
to not put the prisoners in such a position as courts may return to handing out
brutal and unusual punishments merely in order to express the judge’s personal
anger at the offence. He made reference to the Bloody Assizes
where Judge Jeffreys was alleged to have invented punishments which were not
known in either common law or statute. Mr. Dwivedi submitted that just as the
Court could not direct the executive to grant remission in a particular case,
it could not also direct that remission be withheld in a particular case.

The Court however asked Mr. Dwivedi as to why the court
should not interfere as they had virtually legislated in the cases of Vishaka as well as the Prakash Singh case. Mr. Dwivedi
replied that the court could, as it had previously done lay down guidelines
until statutory law was enacted, but submitted that the powers of the court
even under Article 142 are to be exercised within a limited sphere. He
submitted that the case of Premchand
Garg states that while the power under Article 142 is very wide, it cannot
be exercised contrary to a fundamental right or contrary to a statute. He
submitted that the power of the Supreme Court under Article 142 to do “complete
justice” did not give it the power to supplant but merely supplement existing
statutes and this power was to be understood as one which would aid the molding
of relief in a particular case rather than the power to create law which would
apply to all cases.

Mr. Dwivedi thereafter referred to the Criminal Sentences
Act, 1997 and the Criminal
Justice Act, 2003 in the United Kingdom which lays down sentencing
guidelines. The United Kingdom currently permits whole life sentences but after
the European Court of Human Rights judgment in Vinter
v. UK it is necessary that the sentence is subject to review and the
possibility of release is not taken away. He submitted that in the UK, there is
possibility of early release and the quantum of the sentence is determined by a
variety of factors such as the nature of the offence, circumstances of the
convict etc. He submitted that the minimum sentence out of a life term, which
is believed to have a punitive impact is called a “tariff” and the remainder of
the sentence could serve other penological purposes. He submitted that while it
may not be advisable to simply adopt these guidelines, some such guidelines
could be laid down. Mr. Dwivedi further submitted that the right to be
considered had been recognized by the Supreme Court in several cases. He
submitted that the European Court of Human Rights had found life imprisonment
without parole to be contrary to human dignity as well as the Namibian Supreme Court.
  More on this can be found here.

Mr. Dwivedi thereafter submitted relying on the case of AR Antulay that no prejudice
was required to be proved for vitiating any action by the State and it was
sufficient to show merely that a fundamental right had been breached. He
further submitted that it would be wrong by merely following the observations
in Swamy Shradhhananda’s case to make a distinction as it would be violative of
Article 14 of the Constitution. He further submitted that as held in the SCBA case, it was not open to
the court to invent a new punishment not provided for in law.

He further submitted that the court by having the discretion
to fix the terms of a life sentence before which the powers of remission would
apply, would also violate Article
20 of the Constitution. He submitted that Article 20 was not only a
protection against an ex-post facto law but also a protection against a greater
punishment. The Bench however, queried as to whether imposing a punishment of
30 years where life imprisonment was specified would amount to a new
punishment. Mr. Dwivedi argued that this would indeed amount to a punishment
not sanctioned by law as all persons sentenced to life imprisonment would be
entitled to be considered for remission under the CrPC after 14 years have
elapsed under section 433-A of the CrPC.

Thereafter, Mr. Dwivedi concluded his arguments by stating
that this judgment should have prospective effect so that the courts under it
would have the power to consider passing a sentence to alternative to the death
sentence.

Thereafter Mr. TR Andhyarujina, Senior Advocate who was
representing a prisoner who had been sentenced to life imprisonment without
remission under the CrPC, jail manual or any other rules put forth his case
against life without remission.  Mr.
Andhyarujina submitted that the question his case presented was a mixed
question of criminal as well as constitutional law. At the outset, he submitted
that the expression “mercy” petition was wrongly used as the power of the
Governor and President under the Constitution was a high power, not even bound
by the law laid down by the Court and therefore should not be reduced to the
petitioner begging for mercy. He submitted that the clemency powers represented
an important facet of the separation of powers as the Kehar Singh case had held
that the President could hold, while exercising powers under Article 72 that he
could make findings even contrary to those reached by the Supreme Court.  When asked by the Bench as to whether his
client had applied before the Governor or President for clemency, he submitted
that he had not as the prospects of getting any relief there were very less as
these authorities usually did not interfere. He submitted that despite the
powers of the court as well as the powers of the Governor and President, the
legislature in its wisdom had enacted remission, suspension and commutation
procedures under the CrPC. He submitted that sections 54 and 55 of the IPC also
clearly contemplated that the appropriate Government had the power to commute
sentences of death and life imprisonment. Hence, he submitted that there should
not be a sentence imposed which foreclosed any of these options. While keeping
his submissions brief in light of the fact that a number of cases had already
been dealt with by Mr. Dwivedi, he submitted that the Maru Ram judgment was
significant because it make a distinction between the actual judgment as well
as the reasons for the judgment and this scope was open to review. He submitted
that in Godse’s case the judiciary had deferred to the executive by refusing to
interfere to grant remission until he became eligible for it. He also pointed
to section 32-A of the NDPS Act which restricted the granting of any remission
or exercise of clemency. He concluded by stating that handing out the sentence
was the termination of the judicial exercise of power, and carrying out the
sentence was within the executive’s domain.

Thereafter, Dr. Yug Mohit Chaudhary commenced arguments on
behalf of Respondents No. 2 to Respondents No. 7 who are all but one prisoners
convicted in the Rajiv Gandhi murder case. He sought to assist the court on the
question of whether the court should in this reference, answer it in terms of
propositions of law or on the facts of this case. He submitted that while the
power under Article 143 (Reference
to Supreme Court by President) of the Constitution could be exercised in
relation to any question of law which had or may arise, the power under Article 145(3) under which the
present reference was made, required the facts to be addressed by the Court. He
submitted that he intended to lay before the court some facts which would be
relevant for the adjudication of the present case. He submitted that in the
present case, all the accused persons were acquitted of TADA, which is a
central legislation. He further submitted that while they were convicted under
offences under the Explosives Act, Foreigners Act and some other central
legislations, the sentences under those legislations were no more than 2 years
and had already been served. He submitted that for these offences, there was no
question of remission as the sentence had already been undergone. He however
submitted that they required the exercise of powers of remission for offence
under section 302 of the IPC r/w 120-B of the Indian Penal Code. He submitted
that the order of this Court dated
18.2.2014 commuting the death sentence of 3 of the convicts specifically
directed that the sentence would be for the rest of their lives, but subject to
remission. This was set out in paragraph 31 (of the official judgment). He
submitted that against this, the Union of India had filed a Review Petition as
well as a Curative Petition, quoting this very paragraph and specifically
challenging it. He brought to the attention of this Hon’ble Court’s attention
that both these petitions were dismissed. He submitted that the present writ
petition also quotes this paragraph and raises it as a ground for challenge. He
therefore concluded for today stating that the present petition would amount to
nothing but a challenge to a final judgment of the Supreme Court by the Union through
a public interest litigation by taking up the cause on behalf of the victims
and acting as the parens patriae.

The arguments will resume on 11.8.2015 (Tuesday).