(As the arguments in Union of India v. Sriharan head towards conclusion, Nishant Gokhale brings you the arguments presented on 11.8.2015)

 Dr. Yug Mohit Chaudhary continued his arguments today (11.8.2015) on behalf of
Respondent No. 2 to Respondent No. 7 who are all but one of the prisoners
convicted in the Rajiv Gandhi murder case today.

Continuing his argument from the previous hearing (6.8.2015)
that the Union in this writ was seeking to question the judgment of the Supreme
Court commuting the death sentences of some of the Respondents to life
imprisonment for their entire life, subject to remission. He submitted that
except for a review or curative petition, the decree of the Supreme Court
itself could not be re-opened through a different case. Even if a judgment of
the court was over-ruled as a precedent in a subsequent case, it would not
cease to operate in the case in which the decree was made. He placed reliance
upon the case of the In Re: Special
Reference No. 1 of 2012 which was a Presidential Reference regarding the
allocation of natural resources in the context of cellular licenses. He
submitted that if in a Presidential Reference, the Supreme Court had held that
a previous judgment cannot be unsettled, how could the Union in a proceeding
like this be permitted to question the validity of the commutation judgment
despite a review petition and curative petition by the Union on this issue
having been rejected by the court.

He submitted that as far as the questions in the present
reference to the Constitution bench were concerned, the question of meaning of
the term “life imprisonment” did not arise in the case of the Respondents. He however
submitted that he supported the view that life imprisonment cannot be awarded
by the courts beyond the scope of remission. He submitted that the National
Human Rights Commission had issued guidelines which
itself stated that the maximum period of incarceration in life imprisonment
would be 25 years and there could be no case where a person under the sentence
of  life imprisonment would be ineligible
for remission. He submitted that these guidelines had been accepted by the
Union of India in an affidavit filed by them in a different case in 2004
(Balakrishnan’s case) to be “fair and reasonable”. He also thereafter referred
to the Model
Prison Manual issued by the Bureau of Police Research and Development which
provided for premature release and made reference to the NHRC Guidelines. Hence
he submitted that the Union of India could not contend that a sentence of life
imprisonment without the prospect of remission could be a sentence which could
be imposed in law.

In response to the second question of exercise of powers
under Art. 161 and Art. 72, he submitted that there was no constitutional or
legislative bar on the use of these powers on multiple occasions and the court
should not intervene in this regard. He submitted that the other questions were
largely premature as the State of Tamil Nadu had consulted the Union of India
on the proposal to release the Respondents from jail, and the Union had merely
responded by moving the Supreme Court. He submitted that it was possible that
if the Union did respond and the State Government was satisfied with this
response, the issues of who is the appropriate government would be moot. He
stated that the questions relating to the powers of the Governor and President
to consider clemency petitions had not arisen so far as no mercy petitions had
been moved by the Respondents after their death sentences had been commuted to
life imprisonment.  He said that the
question of “consultation” and “concurrence” had also not arisen so far as the
Union had not stated what it proposed to do in response to the State of Tamil
Nadu’s intimation to them. He submitted therefore that this court should not
decide the meanings of these terms as they were merely hypothetical questions
as far as the present case was concerned.

In concluding his submissions, he made the following
suggestions to the Court. (1) He suggested that the overturning of the decision
in Swamy Shraddananda’s case
would mean that one door for convicts facing the death penalty would be closed.
He however conceded that he could not deny that Swamy Shraddananda’s case had
clearly encroached upon the powers of the executive. Quoting from Bachan Singh’s case he reiterated
the cautionary note in that case that judges should not to be blood thirsty and
hanging a person had never done any good to the judges. (2) He implored the
court to not put life imprisonments beyond the scope of review and remission by
the Government. He further suggested that if the Court was to take the view
that it could specify a sentence in cases where life imprisonment was being
granted where the eligibility of remission was postponed or taken away, then it
should only be the Supreme Court under Art. 142 which should have the power to
do it. He submitted that if the Trial Courts across the country were given the
power to interpret life imprisonment any way they liked, then there would be
mayhem. (3) He further submitted that the Supreme Court could not encroach in
any way the powers under Articles 72 and 161 as they are not circumscribed by
any statute or within the constitution. He submitted however, that the court
could direct that a concept of “just remission” be brought into use. He argued
that the Supreme Court in a number of cases such as Rameshbhai Chandubhai Rathore
has held that remission could be granted by the Government for good and
sufficient reasons. He submitted that the clearest exposition of “just
remission” was in Sushil
Sharma’s case where the court has laid down (paras 83-84) that the
remission granted would be subject to procedural checks under section 432 CrPC
and substantive checks under section 433-A of CrPC. (4) He further submitted
that in cases where appeals for enhancement of punishment are filed before the
Supreme Court, it was necessary that the number of years of the sentence are
specified. He submitted that in those kinds of cases, the Supreme Court was the
last court the prisoner could approach and no scope for uncertainty should be
left. (5) He further submitted that before ruling on the assumption that there
was a vacuum between the alternatives of 14 years and death sentence, he urged
the court to consider how different states in their respective jail manuals
dealt with remission. He submitted that in the State of Maharashtra, there was
a provision where for different kinds of murders, the minimum periods of
incarceration were prescribed. He stated that these extended upto 60 years in
cases where death was caused in gang wars. (6) He submitted that the Court
could consider calling for a report of the probation officer to ascertain the
conduct of the prisoner in jail to determine whether or not the prisoner’s
sentence should be remitted.

He concluded his submissions by arguing that the doctrine of
parens patriae was unheard of in
litigation and in the Bhopal Gas Leak, it was used as a legislative mechanism.
He submitted that it was important that the rule of law be upheld and this case
not be treated as an exception. He submitted that this Court should deal with several
questions framed by the referring court in an appropriate case and there was no
need to deal with them in the present case.

Thereafter
Mr. Ram Jethmalani, Senior Advocate argued on behalf of Respondent No. 1 who is
also a convict in the Rajiv Gandhi murder case. He contended that since the
commutation order itself stated that it should be subject to remission, it was
beyond question whether it was permissible and the State Government was the
appropriate authority to decide in the present case. He briefly adverted to the
case of Kehar Singh which he
had argued to contend that it held that the President had power to even give an
opinion contrary to the decision of the Supreme Court and consider the evidence
in the case afresh. He submitted that the powers of remission under the CrPC
and the Constitution are concurrent powers. He submitted that his reading of
Article 73 was that where a State Government could also legislate, the Central
government would be excluded. He submitted that the conduct of a prisoner in jail
was best known to the State Government itself and the Central Government at a
distant location would not be in a position to state whether the prisoner was
to be eligible for remission. He submitted in response to the first question
that it did not arise in the facts of his case. He however submitted that at
best the court could give a recommendation to the executive. He further stated
that following the dictum in Bachan Singh’s case, death sentence could only be
awarded in the “rarest of rare” cases and not merely in cases where a 14 year
sentence did not seem adequate. He further submitted that Swamy Shraddhanand’s
case was a violation of the doctrine of separation of powers and was based on
the assumption that a life sentence was no more than 14 years. He however
placed on record charts in the jail manuals in Maharashtra and Haryana to show
that life sentences could in some types of cases be considered to be for upto
60 years. He further submitted that the concept of res judicata did not apply to the executive powers and refusal to
exercise powers in such a case maintained the status quo and the prisoner
remained under the same sentence. He concluded by stating that most of the
questions referred did not arise in the facts of his case.

Thereafter,
in response to notice issued to all the States, several state governments made
submissions to the court. Mostly, they adopted the arguments of Mr. Dwivedi who
had appeared for the States of Tamil Nadu and West Bengal. Mr. V Giri, Senior
Advocate for the State of Kerala, briefly summarized his submissions following
the submissions made by the counsel previously. The State of Uttar Pradesh through
Mr. Gaurav Bhatia in addition to taking the court through some of the important
paragraphs of the various judgments cited previously to demonstrate that the
case of Swamy Shraddhanand was per incuriam Maru Ram and Gopal Godse’s cases,
presented statistical data on how powers of remission had been exercised by the
State. He also submitted that Swamy Shraddhanand’s cases was decided without
considering any data and was based on the erroneous assumption that the States
released prisoners under life sentence immediately after 14 years and exercised
powers arbitrarily. He submitted that as per the data available with him, only
one death sentence had been commuted by the Governor of UP in 1973 and today a
total of 607 cases seeking clemency in relation to various sentences were
pending before the Governor. He submitted a list of several cases of life
imprisonment where prisoners were not released by the State government despite
having completed over 20 years of their life sentence to show that release was
not instantly done by the state after 14 years. He however informed the court
that he would file the complete data as well as data relating to death
sentences commuted to life imprisonment in the State of Uttar Pradesh. He
further submitted that it was pertinent to note that Parliament’s intention was
to leave the power of remission open as even after passing the Criminal Law (Amendment)
Act, 2013 which provides for sentences for the rest of ones natural life, the
powers of remission under the CrPC remained untouched. He further submitted
that Swamy Sharddhanand’s case did not itself lay down guidelines nor did it
identify a case where the power of the State Government or Governor had been
abused. He submitted that even if a sentence for period between life imprisonment
and death were to be awarded by the court, reasons would have to be given as
was done in the case of Haru
Ghosh.

Thereafter
the Court briefly heard some intervenors in the case. One intervenor sought to trace
the historical context of life imprisonment from the Indian Penal Code as
originally drafted, a treatise by Sir George Rankin titled “The
Background to Indian Law” as well as the Government of India Act, 1935 to
state that the concept of life without remission was not recognized
historically and that life imprisonment ought not to be for more than 20 years.
Dr. SP Sharma who represented Swamy Sharddhanand submitted that in view of the
judgment in his case, the prisoner was not let out of jail for treatment even
on medical grounds. The Bench however stated that once this reference was
decided, the appropriate bench would determine the individual cases and refused
to entertain interventions.

The
Solicitor General thereafter sought to respond to the points made over the last
several days by the Respondents. He submitted that a constant refrain of all
the States was the prisoner’s rights whereas there was no talk by the state of
the society’s interest in punishment as well as the victim’s rights. He
submitted that while it was very well to state that in cases of wrongful
exercise of remission powers, the option of judicial review was available, it
was not known as to who would bring this matter to court. He submitted that the
victims who are not consulted in the process of remission would not be aware,
and the State Government would not refer it since it was itself granting
remission and hence the court would not have any occasion to consider the issue.

He
further submitted that in the present case, the State Government had not shown
any material to show how it is that the convicts in the Rajiv Gandhi murder
case had reformed, shown good conduct or remorse and hence there was no
material to state as to why they should be released. In response to the Bench’s
comment that this may be a premature contention, he responded that he would
answer this query in due course.

He
submitted that if section 432
CrPC was to be considered as a parallel or concurrent power, it should have
had a non-obstante clause which stated that it was notwithstanding anything
contained in any other law or the constitution. Since this was not the wording,
he submitted that this could only be a procedural and not a substantive
provision. He thereafter referred to section 432(7)(a) to state that the
appropriate government under it was the Central Government and section 432(7)(b)
which was invoked in “other cases”, the State Government was the appropriate
government. He submitted that in a case under section 432(7)(b), the power
would be circumscribed by section
435(1) CrPC. In the present case, since the CBI had investigated, section
435(1)(a) would be specifically attracted. He thereafter referred to the
provisions of the Delhi Special
Police Establishment Act. He submitted that under section 4(2) of the DSPE
Act the superintendence would be that of the Central Government and section
2(3)  gave CBI officers the power to act
as police officers of that area where notified. He submitted that in this case,
the State Government, through a notification of 22nd May 1991 under
section 6 of the DSPE Act had itself handed over the investigation in the
murder of Rajiv Gandhi into the hands of the CBI. Therefore it would not be
open to the State of Tamil Nadu to state that it was not bound by section
435(1)(a) of the CrPC. The bench queried as to whether the CBI’s
superintendence by the central government was only limited to matters of
investigation. To this the Solicitor General responded stating that section
435(1)(a) covered offences where the investigation was done by the CBI.

The
SG thereafter submitted that the provisos to Articles 73 and 162, which
delineate the extent of the executive powers of the Union and States
respectively, required to be interpreted harmoniously. He further submitted
that there was no reference or incorporation of the provisos to articles 73 or
162 in section 432(7)(a) or section 435 and therefore it could not be assumed
that the procedure under the CrPC was in any way parallel or concurrent to the
constitutional powers. He submitted that there was no power under the CrPC but
only procedure and even under section 125 CrPC, an illustration given by the
State of UP and the Bench, there was only an interim procedure to claim maintenance,
not a substantive right.

The
bench said it continue hearing the matter at 2pm on
12.8.2015 (Wednesday) and it is expected that the matter will conclude then.