Rajiv Gandhi Assassination Convicts Remission Case Referred to Constitutional Bench by Supreme Court of India
Key Points:
In a significant judgement impacting Indian criminal justice system ,the hon'ble supreme court referred Rajiv Gandhi convicts remission case to constitutional bench to give certain clarifications pertaining to remission.
In a significant judgement impacting Indian criminal justice system ,the hon'ble supreme court referred Rajiv Gandhi convicts remission case to constitutional bench to give certain clarifications pertaining to remission.
Why
Union of India filed this case?
The State of Tamil Nadu, in their letter dated 19.02.2014, sought for views of
the Union of India for the release of Respondent Nos. 1-7 in Writ Petition
(Criminal) No. 48 of 2014 within three days from the date of receipt of the
same, the Union of India filed the above criminal misc. petitions before this
Court praying for restraining the State Government from passing any order of
remission and releasing them from prison.
What Criminal Procedure Says on remission or commutation in
certain case:
Section 435 -State Government
to act after consultation with Central Government in certain cases (1) The
powers conferred by sections 432 and 433 upon the State Government to remit or
commute a sentence,in any case ,where the sentence is for an offence—(a) which
was investigated by the Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence under any Central Act
other than this Code, or (b) which involved the misappropriation or destruction
of,or damage to, any property belonging to the Central Government,or (c) which
was committed by a person in the service of the Central Government, while
acting or purporting to act in the discharge of his official duty.shall not be
exercised by the State Government except after consultation with the Central
Government.
Whether State empowered to grant remission and what is Constitutional
provision for the state? :
State subject, Mr. Jethmalani relied on Entry
4 of List II, State List, which reads as under: “Prisons, reformatories,
borstal institutions and other institutions of a like nature, and persons
detained therein; arrangements with other states for the use of prisons and
other institutions.” Section 59 of the Prisons Act, 1894 specifically empowers the
State Government to make rules on the following: “(5) For the award of marks
and shortening of sentences; (21) For rewards for good conduct;…(27) In regard
to the admission, custody, employment, dieting, treatment and release of
prisoners.” This clearly shows that granting of remission for good conduct and
determination of premature release is exclusively within the domain of the
State Government and falls squarely within Entry 4, List II.
What
are the Questions before Constitution Bench :
(i)
Whether
imprisonment for life in terms of Section 53 read with Section 45 of the Indian
Penal Code meant imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission and whether as per
the principles enunciated in paras 91 to 93 of Swamy Shraddananda (supra),
a special category of sentence may be made for the very few cases where the
death penalty might be substituted by the punishment of imprisonment for life
or imprisonment for a term in excess of fourteen years and to put that category
beyond application of remission?
(ii)
Whether
the “appropriate Government” is permitted to exercise the power of remission
under Section 432/433 of the Code after the parallel power has been exercised
by the President under Article 72 or the Governor under Article 161 or by this
Court in its Constitutional power under Article 32 as in this case?
(iii)
Whether
Section 432(7) of the Code clearly gives primacy to the executive power of the
Union and excludes the executive power of the State where the power of Union is
co-extensive? (iv) Whether the Union or the State has primacy over the subject
matter enlisted in List III of Seventh Schedule of the Constitution of India
for exercise of power of remission?(v) Whether there can be two appropriate
Governments in a given case under Section 432(7) of the Code? (vi) Whether suo
motu exercise of power of remission under Section 432(1) is permissible in
the scheme ofthe section if, yes whether the procedure prescribed in sub-clause
(2) of the same Section is mandatory or not?
(iv)
Whether
the term “consultation” stipulated in Section 435(1) of the Code implies
“concurrence”? 49) All the issues raised in the given case are of utmost critical
concern for the whole of the country, as the decision on these issues will
determine the procedure for awarding sentences in the criminal justice system.
Full Text of
judgement :
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 48 OF 2014
Union of India .... Petitioner(s)
Versus
V. Sriharan @ Murugan & Ors. ... .Respondent(s)
WITH
WRIT PETITION (CRL.) NO. 105 OF 2008 CRL. M.P. NO.4622 OF
2014 IN T.C. (CRL.) NO.1 OF 2012 CRL. M.P. NO. 4623 OF 2014 IN T.C. (CRL.) NO.
2 OF 2012 CRL. M.P. NO. 4624 OF 2014 IN T.C. (CRL.) NO. 3 OF 2012
J U D G M E N T
P. Sathasivam, CJI.
Writ Petition (Crl.) No. 48 of 2014
1) This writ petition, under Article 32 of the
Constitution of India, has been filed by the Union of India praying for
quashing of letter dated 19.02.2014, issued by the Chief Secretary, Government of Tamil Nadu to the
Secretary, Government of India wherein the State of Tamil Nadu proposes to
remit the sentence of life imprisonment and to release Respondent Nos. 1-7
herein who were convicted in the Rajiv Gandhi Assassination Case in pursuance
of commutation of death sentence of Respondent Nos. 1-3 herein by this Court on
18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V. Sriharan @ Murugan
& Ors. vs. Union of India & Ors. 2014 (2)SCALE 505. Writ
Petition (Crl.) No. 105 of 2008
2) In the above writ petition, the petitioner
who has been arrayed as Respondent No. 6 in Writ Petition (Crl.) No. 48 of 2014
(filed by the Union of India) prays for quashing of G.O. No. 873 dated
14.09.2006, G.O. No. 671 dated 10.05.2007 and G.O. (D) No. 891 dated 18.07.2007
issued by the State of Tamil Nadu, Home Department as the same are
unconstitutional.In effect, the petitioner prayed for remission of his
sentence, which was rejected by the Advisory Board. Criminal M.P. Nos. 4622-24
of 2014
3) When the State of Tamil Nadu, in their
letter dated 19.02.2014, sought for views of the Union of India for the release
of Respondent Nos. 1-7 in Writ Petition (Criminal) No. 48 of 2014 within three
days from the date of receipt of the same, the Union of India filed the above
criminal misc. petitions before this Court praying for restraining the State
Government from passing any order of remission and releasing them from prison.
Factual Background:
4) Pursuant to the judgment of this Court
dated 18.02.2014 in V. Sriharan @ Murugan (supra), the Government of
Tamil Nadu took a decision to grant
remission to Respondent Nos. 1 to 7. Accordingly, the Government of Tamil Nadu
sent a letter dated 19.02.2014 to the Secretary to the Government of India,
Ministry of Home Affairs, stating that it proposes to remit the sentence of
life imprisonment on V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G.
Perarivalan @ Arivu and release them. In that letter, it was further stated
that four other persons, namely, Jayakumar, Robert Payas, S. Nalini and P.
Ravichandran, convicted in the same assassination would also procure similar
remission. Besides, it was asserted in the letter that since the crime was
investigated by the Central Bureau of Investigation (CBI) and as per Section
435 of the Code of Criminal Procedure, 1973 (in short “the Code”), the State
Government, while exercising its power under Section 432 of the Code, must act
after consultation with the Central Government, accordingly,it requested to
indicate the views of the Union of India within three days on the proposal to
release the seven persons mentioned above. 5) Accordingly, in these matters, we
are called upon to decide the legitimacy of the proposal of the State
Government to release Respondent Nos. 1 to 7, who are facing life sentence. For
the purpose of disposal of the issue in question, we reiterate the relevant
provisions. Sections 432 and 435 of the Code read as under: “432 - Power to
suspend or remit sentences (1) When any person has been sentenced to punishment
for an offence, the appropriate Government may, at any lime, without conditions
or upon any conditions which the person sentenced accepts, suspend the
execution of his sentence or remit the whole or any part of the punishment to
which he has been sentenced.
(2) Whenever an application is made to the
appropriate Government for the suspension or remission of a sentence, the
appropriate Government may require the presiding Judge of the Court before or
by which the conviction was had or
confirmed, to state his opinion as to whether the application should be granted
or refused, together with his reasons for such opinion and also to forward with
the statement of such opinion a
certified copy of the record of the trial or of such record thereof as
exists.
(3) If any condition on which a sentence has
been suspended or remitted is, in the opinion of the appropriate Government,
not fulfilled, the appropriate Government may cancel the suspension or
remission,and thereupon the person in whose favour the sentence has been suspended or remitted may,
if at large, be arrested by any police officer, without warrant and remanded to
undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is
suspended or remitted under this section may be one to be fulfilled by the
person in whose favour the sentence is suspended or remitted, or one
independent of his will.
(5) The appropriate Government may, by
general rules or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should be presented and dealt
with: Provided that in the case of any sentence (other than a sentence of fine)
passed on a male person above the age of eighteen years,no such petition by the
person sentenced or by any other person on his behalf shall be entertained,
unless the person sentenced is in jail, and, (a) where such petition is made by
the person sentenced, it is presented through the officer in charge of the
jail; or (b) where such petition is made by any other person, it contains a
declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections
shall also apply to any order passed by a Criminal Court under any section of
this Code or of any other law which restricts the liberty of any person or
imposes any liability upon him or his properly.(7) In this section and in
section 433, the expression "appropriate Government" means,—(a) in
cases where the sentence is for an offence against, or the order referred to in
sub-section (6) is passed under, any law relating to a matter to which the executive
power of the Union extends, the Central Government;(b)
in other cases the Government of the State within which the offender is
sentenced or the said order is passed. 435 - State Government to act after
consultation with Central Government in certain cases (1) The powers conferred
by sections 432 and 433 upon the State Government to remit or commute a sentence,in
any case where the sentence is for an offence—(a) which was investigated by the
Delhi Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, or (b)
which involved the misappropriation or destruction of, or damage to, any
property belonging to the Central Government, or (c) which was committed by a person in the
service of the Central Government, while acting or purporting to act in the
discharge of his official duty.shall not be exercised by the State Government
except after consultation with the Central Government.
(2) No order of suspension,
remission or commutation of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some of which relate to
matters to which the executive power of the Union extends, and who has been
sentenced to separate terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension, remission or commutation,
as the case may be, of such sentences has also been made by the Central
Government in relation to the offences committed by such person with regard to matters
to which the executive power of the Union extends.”
6) In addition to the above provisions of the
Code, we are concerned with certain provisions of the Constitution of India
also. Article 73 speaks about the extent of executive power of the Union, which
reads as under:“73 - Extent of executive power of
the Union (1) Subject to the provisions of this Constitution, the executive
power of the Union shall extend--(a) to the matters with respect to which
Parliament has power to make laws; and (b) to the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by
virtue of any treaty on agreement:Provided that the executive power referred to
in subclause(a) shall not, save as expressly provided in this Constitution or
in any law made by Parliament, extend in any State to matters with respect to
which the Legislature of the State has also power to make laws….”
7) Article 162 of the Constitution deals with
the extent of executive power of the State, which reads as follows: “162 - Extent of executive power of State Subject to the
provisions of this Constitution, the executive power of a State shall extend to
the matters with respect to which the Legislature of the State has power to
make laws: Provided that in any matter with respect to which the Legislature of
a State and Parliament have power to make laws, the executive power of the
State shall be subject to, and limited by, the executive power expressly
conferred by the Constitution or by any lawmade by Parliament upon the Union or
authorities thereof.”
8) Heard Mr. Goolam E. Vahanvati, learned
Attorney General of India for the petitioner-Union of India, Mr. Ram Jethmalani,
learned senior counsel and Mr. Yug Mohit Choudhary, learned counsel for
Respondent Nos. 1-5 and 7 in W.P. (Crl.) No. 48 of 2014 and Mr. Sanjay R.
Hegde, learned counsel for the petitioner in W.P. (Crl.) No. 105 of 2008 and
Respondent No. 6 in W.P. (Crl.) No. 48 of 2014 and Mr. Rakesh Dwivedi, learned
senior counsel for the State of Tamil Nadu.
Contentions of the Petitioner:
9) At the outset, learned Attorney General
appearing for the Union of India submitted that what is proposed to be done by
the State of Tamil Nadu in exercise of power of remission in the present case
is illegal and without jurisdiction for the following reasons:a)The State
Government is not the ‘appropriate Government’ in the present case.b)The State
Government had no role to play in the present case at any
stage.c)Alternatively, without prejudice, the proposal by the State Government
is contrary to law, and does not follow the procedure set out under the Code.
10) Learned Attorney General pointed out that
from a bare reading of the definition of “appropriate Government” under Section
432(7) of the Code reveals that in cases where the sentence is for an offence
against any law relating to a matter to which the executive power of the Union
extends, the “appropriate Government” in that respect would be the Central
Government. It is the stand of the Union of India that this provision clearly
gives primacy to the executive power of the Union and excludes the executive
power of the State where the power of the Union is co-extensive.
11) It is further pointed out that as per the
proviso to Article 73, the executive power of the Union referred to in Article
73(1)(a) shall not, save as expressly provided in the Constitution or in any
law made by the Parliament, extend in any State to matters with respect to
which the Legislature of the State also has power to make laws. It is argued
that the proviso to Article 73 is excluded by Section 432(7) of the Code as it
is only applicable where there is no express provision to maintain the
executive power of the Union. Similarly, proviso to Article 162 of the Constitution
limits the executive power of the State with respect to any matter where both
the Legislature of the State and the Parliament have power to make laws, where the
Constitution or any law has expressly conferred executive power upon the Union.
Thus, it was submitted that the proviso contemplates that the executive power
of the State may be overcome by the executive power of the Union through the
provisions of the Constitution or any other law made by the Parliament. The
Code is, therefore, one avenue through which this may be done and has been
exercised through Section 432(7) to give primacy to the executive power of the
Union. Learned Attorney General further submitted that based on a reading of Articles
73 and 162 read with Section 432(7) of the Code, the “appropriate Government”
in the present case would be the Central Government, as the Indian Penal Code
falls under the concurrent List, to which the executive power of the Union also
extends.
12) Learned Attorney General further pointed
out that Articles 73 and 162 must also be read subject to Article 254 of the
Constitution, which gives primacy to the law made by the Parliament. In this
regard, reliance has been placed by learned Attorney General on the decision of
this Court in S.R. Bommai vs. Union of India, (1994) 3 SCC 1 and
he asserted that the above decision completely displaces the stand of the State
Government with regard to the Concurrent List. Further, it was submitted that
it is not possible to split up the Sections under which the conviction was made
since it would lead to a completely absurd situation where for some offences
the Central Government would be the appropriate Government, and in respect of
others, the State Government would be the appropriate Government.
13) In any case, it is the stand of the Union
of India that since the State Government had consented for the case to be
investigated and prosecuted by the CBI via the consent order dated
22.05.1991 under Section 6 of the Delhi Special Police Establishment Act, 1946,
which was followed by the Central Government Notification dated 23.05.1991,
ensuing which the entire investigation of the case was handed over to the CBI,
at this stage, the State cannot claim that it is the appropriate Government. In
this regard, the Union of India relied on the observations of this Court in the
case of Lalu Prasad Yadav vs. State of Bihar, (2010) 5 SCC 1.
14) Besides, the Union of India further
submitted that the State Government, without considering the merits and facts
of the case, hastily took a decision to remit the sentence and release seven
convicts which is contrary to the statutory provisions and also to the law laid
down by this Court. It is pointed out that application of mind has been held to
be necessary, which is entirely lacking in the present case. There are no
cogent reasons given in the letter dated 19.02.2014, apart from the reliance on
the judgment of this Court.
15) In addition, it is the stand of the Union
of India that the State Government could not have suo motu, without an application,
initiated the process of remitting the sentence and releasing the convicts. In
this regard, the Union of India relied on the decision of this Court in Mohinder
Singh vs. State of Punjab, (2013) 3 SCC 294 wherein this Court held
that the exercise of power under Section 432(1) of the Code cannot be suo
motu. It was further held as under: “27. … …. We are of the view that
exercise of power by the appropriate Government under sub-section (1) of
Section 432 of the Code cannot be suo motu for the simple reason that this is
only an enabling provision and the same would be possible subject to fulfilment
of certain conditions. Those conditions are mentioned either in the Jail Manual
or in statutory rules. This Court in various decisions has held that the power
of remission cannot be exercised arbitrarily. In other words, the decision to
grant remission has to be well informed, reasonable and fair to all
concerned….. “ Thus, it was submitted that the law laid down in para 27 of Mohinder
Singh (supra) cannot be sidelined by the State Government.
16) Alternatively, it is submitted that
assuming Section 435(2) of the Code is applicable, the use of the term ‘consultation’
under Section 435(1) of the Code should be interpreted to mean ‘concurrence’.
Reference in this regard is made to the judgment of this Court in State of Gujarat
vs. R.A. Mehta, (2013) 3 SCC 1, wherein it was held as under: “32.
However, in a situation where one of the consultees has primacy of opinion
under the statute,either specifically contained in a statutory provision, or by
way of implication, consultation may mean concurrence.”
17) In addition to all the above submissions,
learned Attorney General formulated an alternative contention and submitted
that once the death sentence of a convict has been commuted into life
imprisonment, the same has to be interpreted to mean the entire life of the
convict and the executive cannot exercise the power of remission of sentence
thereafter. In this regard, reliance was placed on Swamy Shraddananda vs.
State of Karnataka, (2008) 13 SCC 767.
Contentions of Respondents:
18) In reply to the above submissions, Mr.
Rakesh Dwivedi, learned senior counsel
for the State of Tamil Nadu submitted that “appropriate Government” as defined
in Section 432(7) of the Code is the State Government in the present case.
19) Learned senior counsel for the State
submitted that the Central Government is the appropriate Government where
sentence is for an offence against any law relating to a matter to which the
executive power of the Union extends. Likewise, Article 73 of the Constitution
of India makes executive power of the Union co-extensive with Parliament’s law
making power and power relating to treaties/agreement. However, it is the stand
of the State that the proviso stipulates that power referred to in subclause (a)
would not extend in any State to matters relating to the Concurrent List of the
seventh Schedule of the Constitution save where the Constitution or law of Parliament
expressly provides. This interpretation of the proviso to Article 73
corresponds with the reading of the proviso to Article 162. It is the stand of
the State of Tamil Nadu that Section 434 of the Code is one such provision but
it makes the Central Government’s power in cases of sentence of death concurrent
and not dominant. There is no other provision in Section ‘E’ of Chapter XXXII
or otherwise of the Code which subordinates the executive power of the State in
the Concurrent field of legislation to the executive power of the Union in
matters of remission,commutation, pardons etc.
20) Learned senior counsel for the State
pointed out that Article 72(3) of the Constitution expressly saves the power of
the States under Article 161 and other laws to grant remission or commutation
of sentence of death from the impact of Article 72(1)(c) which confers power on
the President qua all sentences of death. On a plain reading of the
executive power of the State under Article 162, the same being co-extensive
with the legislative power would extend to the concurrent field under List III.
21) Alternatively, Mr. Dwivedi submitted that
Entry 1 of List III of the Seventh Schedule of the Constitution excludes
offences against law with respect to matters in List I and List II. Indian
Penal Code is mentioned in Entry 1 of List III. IPC involves offences which
relate to different subject matters, some of which fall in List I and List II.
Mr.Dwivedi submitted that in G.V. Ramanaiah vs. Supt. Of Central Jail,
(1974) 3 SCC 531,since the subject matter was related to List I, the Central
Government was held to be appropriate Government. However, he highlighted that
in State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (paras 5 &
6), State of M.P. vs. Ajit Singh, (1976) 3 SCC 616 (para 2) and Government
of A.P. vs. M.T. Khan,(2004) 1 SCC 616 (para 10), it was held that
the appropriate Government is the Government of that State alone where the
conviction took place and not where the convict is detained.
22) Learned senior counsel for the State also
pointed out that while Section 55A(b) of IPC makes the State Government the
appropriate Government relating to matter to which executive power of the State
extends, it is the Government of that State within which the offender is sentenced
and under Section 432(7)(b) of the Code in cases other than those mentioned in
clause (a), the State Government is the appropriate Government. However, Section
432(7)(b) of the Code is wider than Section 55A(b) of IPC. It would cover
matters in List III of the Seventh Schedule
of the Constitution too. Section 435(2) of the Code also is indicative of the
above. In a case like the present one, some offences may relate to matters to which
the executive power of the Union extends, while other offences may, in the same
case and qua same person, relate to matters to which the executive power
of the State extends. If in such cases, a person has been sentenced to separate
terms of imprisonment which are to run concurrently, then unless an order has
been made by the Central Government in relation to offences to which its
executive power extends, the order of the State Government would not be given
effect to. The Union could have referred to this provision if the separate
terms of sentences under the other Central Acts like Passport Act, Foreigners
Act, Explosives Act etc. were still operating and the sentences had not been
already served out. Learned senior counsel for the State submitted that in the
present case, all other sentences of 2-3 years have been fully served out.
23) It is further submitted by Mr. Dwivedi that
public safety is part of public order generally unless it has the dimension of
Defence of India or National Security or War.It is followed from the decision
in Romesh Thapar vs. State of Madras AIR 1950 SC 124 (para 5)
that the State Government of Tamil Nadu is the appropriate Government to
consider remission/commutation of sentence under Section 302 read with Section
120B of IPC.
24) As regards the violation of procedural
requirements under Section 432(2), learned senior counsel for the State submitted
that it involves a procedure which applies only to remission and suspension of
sentence and not to cases of commutation as under Section 433. Besides, he asserted
that Section 432(2) is applicable only when an application is moved on behalf
of the convict for obtaining remission or suspension of sentence. It does not
apply when the appropriate Government exercises suo motu power. It was
further submitted that the Parliament has thought it fit to confine application
of Section 432(2) to cases where an application is made because in such cases the
State has not applied its mind and it may like to obtain the opinion of the
Presiding Judge of the Court which convicted and sentenced or the confirming
court. Hence, it is the stand of the State that the power under Section 432(1)
is very wide and it can be exercised suo motu by the appropriate
Government. When the power is exercised suo motu then Section 432(2) is
not applicable.
25) Alternatively,Mr. Dwivedi submitted that
Section 432(2) is not mandatory. He elaborated that it uses the expression “may
require”. Ordinarily, this expression involves conferment of discretion and
makes the provision directory. This procedure, therefore, would apply where the
Government feels the necessity to require an opinion from the Presiding Judge
of the Court.
26) As far as the compliance of Section 435
is concerned, it is the stand of the State of Tamil Nadu that it initiated the
process of consultation with the Central Government through the impugned letter
as the investigation of the given case was done by the CBI. It is further submitted that it is
consultation between two plenary Governments constituted under a Federal
structure and the State of Tamil Nadu intends to engage in meaningful and
effective consultation wherein the views expressed by the Central Government
during the consultation process will certainly be given due consideration.
However, it is the stand of the State that consultation does not mean
concurrence since the power of the State is a plenary power and States are not
subordinate to the Central Government.
27) Thus, Mr. Dwivedi concluded by stating
that the expression used in Section 435(1) is “except after consultation”. The
Parliament has deliberately not chosen the word “concurrence” as such
interpretation would amount to depriving the State Government of its discretion.
He pointed out the following cases wherein it has been held that consultation
does not mean concurrence:
1. State of U.P. vs. Rakesh Kumar
Keshari, (2011) 5 SCC 341 (para 33)
2. L & T McNeil Ltd. vs. Government of
Tamil Nadu 2001(3) SCC 170 (paras 41, 61) 3. State of U.P. & Anr. vs.
Johri Mal, 2003(4) SCC 714 (para 55) 4. Justice Chandrashekaraiah vs.
Janekere C. Krishna, (2013) 3 SCC 117 (paras 134-138, 144, 153- 155).
28) With regard to the contention of the
Union of India that once the power of commutation/remission has been exercised in a particular case of a convict
by a Constitutional forum particularly, this Court, then there cannot be a
further exercise of the Executive Power for the purpose of commuting/remitting
the sentence of the said convict in the same case, Mr. Dwivedi submitted that the
said contention is unacceptable since in this case this Court had exercised the
judicial power of commuting the death sentence into life imprisonment by
judgment dated 18.02.2014. This Court was not exercising any executive power
under the Constitution or under the Code. It was exercising its judicial power
in the context of breach of Article 21. There is no principle of law put
forward to support this submission and the contention has been floated as if it
is an axiom. The submission of the Union of India, if accepted, would have
horrendous consequences.A convict whose death sentence has been commuted to life
imprisonment by this Court on account of breach of Article 21 would have to
remain imprisoned necessarily till the end of his life even if he has served
out 30-50 years of sentence and has become old beyond 75 years or may be terminally
ill yet there would be no power to remit/commute.
29) Besides, it is the stand of the State
that when this Court commuted the death sentence into life imprisonment, it did
not bar and bolt any further exercise of commutation/remission power by the
Executive under the Constitution or under the Code. In fact, it expressly envisaged
subsequent exercise of remission power by the appropriate Government under
Section 432 subject to procedural checks and Section 433A of the Code.
30) Mr. Dwivedi, further pointed out that
even in the absence of such an observation in para 31 of the decision of this
Court in V. Sriharan @ Murugan (supra) the legal position would remain
the same as this Court does not prevent the exercise of any available power
under the Constitution and the statute. In fact it has been laid down in Supreme
Court Bar Association vs. UOI, (1998) 4 SCC 409 and Manohar Lal
Sharma vs. Principal Secretary, (2014) 2 SCC 532 that even the power
under Article 142 cannot be exercised against the statute much less the
Constitution. Hence, according to him, the State Government is the appropriate
Government.
31) Mr. Ram Jethmalani, learned senior
counsel for Respondent Nos. 1 to 5 and 7 adopted similar arguments and
emphasized on the meaning of consultation. He extensively referred to First
Judges’ case, viz., S.P. Gupta vs. Union of India, (1981) Supp
SCC 87 (a seven-judge bench judgment) and heavily relied on para 30 of the judgment:“30.
… …. But, while giving the fullest meaning and effect to “consultation”, it
must be borne in mind that it is only consultation which is provided by way of fetter
upon the power of appointment vested in the Central Government and consultation
cannot be equated with concurrence. We agree with what Krishna Iyer, J. said in
Sankalchand Sheth case (Union of India vs. Sankalchand Himmatlal Sheth, (1977)
4SCC 193 : 1977 SCC (L&S) 435; (1978) 1 SCR 423 : AIR 1977 C 2328) that
“consultation is different from consentaneity.” According to him, consultation
does not mean concurrence though the process of consultation involves consideration
of both - the entity seeking consultation and the consultee of the same. He
further pointed out that the dominant object of the statute coupled with use of
compelling words may in some cases involve a different meaning. As, for example,
it happened in the Supreme Court Advocates-on-Record Association vs. Union
of India, (1993) 4 SCC 441, also known as the 2nd Judges’ Case. In this
judgment, on the facts and the language used as well as on consideration of the
controlling Article 50 of the Constitution mandating the separation of the judiciary
from the executive, this Court held that in the
process of consultation, the opinion of the Chief Justice has primacy.
No such compelling context leading to departure from the natural meaning of the
word ‘consultation’ exists in Section 435(1) of the Code. In the above-mentioned
case, the following may be considered as the ratio:“438. The debate on primacy
is intended to determine who amongst the constitutional functionaries involved in
the integrated process of appointments is best equipped to discharge the
greater burden attached to the role of primacy, of making the proper choice; and this debate is
not to determine who between them is entitled to greater importance or is to
take the winner’s prize at the end of the debate. The task before us has to be
performed with this perception. 441. For this reason, it must be seen who is
best equipped and likely to be more correct in his view for achieving the
purpose and performing the task satisfactorily. In other words, primacy should
be in him who qualifies to be treated as the ‘expert’ in the field. Comparatively
greater weight to his opinion may then be attached.”
32) It is the submission of learned senior
counsel that even from this perspective, the view of the State Government on a
question of remission which involves knowledge of the prisoner’s conduct whilst
in jail, his usefulness to co-prisoners needing his help and assistance, the manner in which he has
employed his time in jail, his psychiatric condition, and family connections are
more known to the State Government rather than the Union Government. These
circumstances conclusively call for primacy to the finding and decision/opinion
of the State Government.
33) In support of his claim that grant of
remission is a State subject, Mr. Jethmalani relied on Entry 4 of List II, State
List, which reads as under: “Prisons, reformatories, borstal institutions and
other institutions of a like nature, and persons detained therein; arrangements
with other states for the use of prisons and other institutions.” Section 59 of
the Prisons Act, 1894 specifically empowers the State Government to make rules
on the following:
“(5) For the award of marks and shortening of
sentences;
(21) For rewards for good conduct; …
(27) In regard to the admission, custody,
employment, dieting, treatment and release of prisoners.” This clearly shows
that granting of remission for good conduct and determination of premature
release is exclusively within the domain of the State Government and falls
squarely within Entry 4, List II.
34) Mr. Jethmalani further elaborated that
the correctness of the closing paragraph of judgment dated 18.02.2014 is
further evidenced by the fact that a Constitution Bench of this Court in Bhagirath
vs. Delhi Administration, (1985) 2 SCC 580 para 17 had employed the same formulation in its closing
paragraph while disposing of the petition seeking the benefit of Section 428 of
the Code for life convicts. The Court had stated as follows:- “17. For these
reasons, we allow the appeal and the writ petition and direct that the period
of detention undergone by the two accused before us as undertrial prisoners
shall be set off against the sentence of life imprisonment imposed upon them
subject to the provision contained in Section 433A and provided that orders
have been passed by the appropriate authority under Section 432 or 433 of the
Cr.P.C (emphasis added)
35) Mr. Jethmalani has also pressed into
service the revised Guidelines on Remission by the National Human Rights
Commission which reads as under:-
“4. Inability for Premature Release Deleted in view of new para 3.” New para 3 in
the revised guidelines is as follows:“3. …Section 433(A) enacted to deny
pre-mature release before completion of 14 years of actual incarceration to
such convicts as stand convicted of a capital offence. The commission is of the
view that within this category a reasonable classification can be made on the
basis of the magnitude, brutality and the gravity of offence for which the
convict was sentenced to life imprisonment. Certain categories of convicted
prisoners undergoing life sentence would be entitled to be considered for
premature release only after undergoing imprisonment for 20 years including
remissions.The period of incarceration inclusive of remissions in such cases
should not exceed 25 years. Following categories are mentioned in this
connection by way of illustration and are not to be taken as an exhaustive list
of such categories. a. Convicts who have been imprisoned for life for murder in
heinous cases such as murder with rape, murder with dacoity, murder involving
an offence under the Protection of Civil Rights Act, 1955, murder for dowry,
murder of a child below 14 years of age, multiple murders, murder committed
after conviction while inside the jail, murder during parole, murder in a terrorist
incident, murder in smuggling operation, murder of a public servant on duty.b.
Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded
life imprisonment for committing murders as also the perpetrators of murder committed
with pre-meditation and with exceptional violence or perversity. c. Convicts
whose death sentence has been commuted to life imprisonment.” Finally, he
concluded by asserting that the State Government is the appropriate Government
for granting of remission. Consequently, the proposal for release of Respondent
Nos. 1 to 7 had been duly considered in accordance with law.
Discussion:36) We have carefully considered
the rival contentions, examined the relevant Constitutional provisions
alongside the apposite provisions in the Code. The issues raised in this case
revolve around the exercise of power of remission by the appropriate
Government. The commutation of death penalty to life imprisonment can befall at
two stages: firstly, when the appellate Court deems it fit to commute the death
sentence to life imprisonment; and secondly, when the executive exercises its remission power under Article
72 by the President or under Article 161 by the Governor or under Article 32 by
this Court in its judicial review jurisdiction.
37) The primary question that arises for
consideration at this juncture is whether in the first scenario specified above,
the Court has the power to substitute the death penalty for imprisonment for
life (meaning until end of life) and put this category beyond the application
of remission. Learned counsel for both the petitioner and the respondents
submitted divergent views on this subject relying on judicial precedents of
this Court.
38) Learned Attorney General referred to the
three- Judges Bench decision of this Court in Swamy Shraddananda (supra) to
state that life imprisonment imposed on commutation of death penalty will mean
till end of life and, thus, beyond the exercise of power of remission.
Accordingly, it is the stand of the Union of India that Respondent Nos. 4 to 7
cannot be granted remission as it is done in the given case.
39) In Swamy Shraddananda (supra), the
conviction of the appellant – Swamy Shraddananda under Sections 302 and 201 IPC
had attained finality. The Trial Court sentenced him to death for the offence
of murder. The appellant’s appeal and the reference made by the Sessions Judge
were heard together by the Karnataka High Court. The High Court confirmed the
conviction and the death sentence awarded to the appellant and by judgment and
order dated 19.09.2005 dismissed the appellant’s appeal and accepted the
reference made by the Trial Court without any modification in the conviction or
sentence. Against the High Court’s judgment, the appellant had come to this
Court. In view of conflicting views by two Judges of this Court, the matter was
referred to three-Judges’ Bench. After considering all factual details and
various earlier decisions, this Court held that there is a good and strong
basis for the Court to substitute the death sentence by life imprisonment and
directed that the convict shall not be released from prison for the rest of his
life. While considering the said issue, this Court adverted to various
decisions granting remission reducing the period of sentence in those cases in
which life sentence was awarded in lieu of death sentence. This Court in paras
91 to 93 held as under: “91. The legal position as enunciated in Pandit
Kishori
Lal, Gopal Vinayak Godse, Maru
Ram, Ratan Singh and Shri Bhagwan and the unsound way in
which remission is actually allowed in cases of life imprisonment make out a
very strong case to make a special category for the very few cases where the
death penalty might be substituted by the punishment of imprisonment for life or
imprisonment for a term in excess of fourteen years and to put that category
beyond the application of remission.
92. The matter may be looked at from a
slightly different angle. The issue of sentencing has two aspects. A sentence
may be excessive and unduly harsh or it may be highly disproportionately inadequate.
When an appellant comes to this Court carrying a death sentence awarded by the
trial court and confirmed by the High Court, this Court may find, as in the
present appeal, that the case just falls short of the rarest of the rare
category and may feel somewhat reluctant in endorsing the death sentence.
But at the same time, having regard to the
nature of the crime, the Court may strongly feel that a sentence of life
imprisonment subject to remission normally works out to a term of 14 years
would be grossly disproportionate and inadequate. What then should the Court
do? If the Court’s option is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted
and find itself nudged into endorsing the death penalty. Such a course would
indeed be disastrous. A far more just, reasonable and proper course would be to
expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between
14 years’ imprisonment and death. It needs to be emphasised that the Court
would take recourse to the expanded option primarily because in the facts of the
case, the sentence of 14 years’ imprisonment would amount to no punishment at
all.
93. Further, the formalisation of a special
category of sentence, though for an extremely few number of cases, shall have
the great advantage of having the death penalty on the statute book but to
actually use it as little as possible, really in the rarest of rare cases. This
would only be a reassertion of the Constitution Bench decision in Bachan
Singh besides being in accord with the modern trends in penology.”
40) Relying on the aforesaid decision of the
larger Bench, learned Attorney General submitted that it is perfectly legal to
commute the death penalty into imprisonment for life (to mean the entire life
of the convict) and deprive of remission in certain cases. As a consequence,
the exercise of power of remission under Section 432 of the Code by the State
of Tamil Nadu in the case of Respondent Nos. 4 to 7 is impermissible.
41) Whereas it is the stand of learned senior
counsel for the State that the authority to exercise the power of remission
even in such special category of cases still vests with the appropriate
Government, relying on the Constitution Bench decision in Bhagirath (supra),
Mohinder Singh (supra) and various other case-laws. Moreover, it was
asserted by learned senior counsel appearing for the State of Tamil Nadu that
the statutory power of remission granted to the appropriate Government under
Section 432 of the Code cannot be taken away only in certain cases by way of
judicial pronouncement.
42) Having given our most anxious
consideration, we are of the opinion that it will not be appropriate for a
three Judges’ Bench to examine and decide the correctness ofthe verdict of
another three-Judges’ Bench in Swamy Shraddananda (supra).Besides,
inevitability the decision of the Constitution Bench in Bhagirath (supra) would
also be required to be examined. Thus, we deem it fit to refer this matter to a
five Judges’ Bench to reconcile the dispute emerged.
43) The second stage is when the executive
exercises its remission power under Article 72 by the President or under
Article 161 by the Governor or under Article 32 by this Court in its judicial
review jurisdiction and the commutation of death penalty into life imprisonment
is permitted. It is the stand of the petitioner, i.e., Union of India that once
death penalty is commuted into life imprisonment by exercise of executive power
under
Article 72/161 of the Constitution or by the
judicial power vested by the Constitution in Article 32, the categories are beyond
the power of remission and parallel exercise of the similar power by the
executive under the Code is impermissible. Therefore, on this ground, the
learned Attorney General for the Union of India contended that granting of
remission to Respondent Nos. 1 to 3 & 7 is untenable in law. Although, the
Attorney General heavily relied on this proposition to put forth his case but
did not place any substantial material for examination by this Court.
44) Learned counsel for the State countered
this proposition of the petitioner by stating that there is no material on
record to validate the same, hence, remission granted to Respondent No. 7 is
valid in law. It was further contended that the commutation of death sentence
into life imprisonment in case of Respondent Nos. 1 to 3 by this Court was not
by exercising any executive power under the Constitution or under the Code, but
it was in exercise of its judicial power in the context of breach of Article 21. In other words, according to him,
even after this Court commuted the death sentence to life imprisonment, it did
not bar and bolt any further exercise of commutation/remission power by the
executive under the Constitution or under the Code.
45) The issue of such a nature has been
raised for the first time in this Court, which has wide ramification in determining
the scope of application of power of remission by the executives both the
Centre and the State. Accordingly, we refer this matter to the Constitution Bench
to decide the issue pertaining to whether once power of remission under Article
72 or 161 or by this Court exercising Constitutional power under Article 32 is exercised,
is there any scope for further consideration for remission by the executive.
46) Inasmuch as the issue vis -Ã - vis who is the ‘appropriate Government’
under Section 432(7) of the Code to exercise the power of remission is
concerned, elaborate arguments had been advanced by both sides in the course of
the proceedings and the parties raised more than one ancillary questions to the
main issue like which Government-the State or the Centre will have primacy over
the subject matter enlisted in List III of the Seventh Schedule of the
Constitution of India for exercise of power of remission. Another question was
also raised whether there can be two appropriate Governments in one case. In addition,
whether the term “consultation” means “concurrence” under Section 435(1) of the
Code. Since the questions in the given case are contingent on the final decision
to be arrived at in the first issue, we unanimously deem it appropriate that
these issues be decided by the Constitution Bench. Moreover, considering the
wider interpretation of the provisions of the Constitution and the Code
involved in the matter, we consider it fit to refer the matter to the
Constitution Bench for an authoritative interpretation on the same. In fact,
such a course of action is mandated by the provisions of Article 145(3) ofthe
Constitution.
47) Before framing the questions to be decided
by the Constitution Bench in Writ Petition (Crl.) No. 48 of 2014, we intend to
dispose of other matters. Since in Writ Petition (Crl.) No. 105 of 2008, the
petitioner is one of the respondents (Respondent No. 6) in Writ Petition (Crl.)
No. 48 of 2014 and Mr. Sanjay R. Hegde, learned counsel for the petitioner is
not pressing the same, the Writ Petition (Crl.) No. 105 of 2008 is dismissed as
not pressed.Likewise, there is no need to keep the Criminal Misc. Petitions
pending, as the Union of India filed the substantive petition in the form of
Writ Petition (Crl.) No. 48 of 2014 giving all the details. Accordingly, Crl.
M.P. Nos. 4622, 4623 and 4624 of 2014 in T.C.(Crl.) Nos. 1, 2 and 3 of 2012
respectively are dismissed. 48) The following questions are framed for the consideration
of the Constitution Bench: (i) Whether imprisonment for life in terms of
Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for
rest of the life of the prisoner or a convict undergoing life imprisonment has
a right to claim remission and whether as per the principles enunciated in
paras 91 to 93 of Swamy Shraddananda (supra), a special category of sentence
may be made for the very few cases where the death penalty might be substituted
by the punishment of imprisonment for life or imprisonment for a term in excess
of fourteen years and to put that category beyond application of remission?
(ii) Whether the “appropriate Government” is
permitted to exercise the power of remission under Section 432/433 of the Code
after the parallel power has been exercised by the President under Article 72
or the Governor under Article 161 or by this Court in its Constitutional power
under Article 32 as in this case? (iii) Whether Section 432(7) of the Code
clearly gives primacy to the executive power of the Union and excludes the
executive power of the State where the power of Union is co-extensive? (iv)
Whether the Union or the State has primacy over the subject matter enlisted in
List III of Seventh Schedule of the Constitution of India for exercise of power
of remission?(v) Whether there can be two appropriate Governments in a given
case under Section 432(7) of the Code? (vi) Whether suo motu exercise of
power of remission under Section 432(1) is permissible in the scheme ofthe
section if, yes whether the procedure prescribed in sub-clause (2) of the same
Section is mandatory or not?(vii) Whether the term “consultation” stipulated in
Section 435(1) of the Code implies “concurrence”? 49) All the issues raised in
the given case are of utmost critical concern for the whole of the country, as
the decision on these issues will determine the procedure for awarding
sentences in the criminal justice system.
Accordingly, we direct to list Writ Petition
(Crl.) No. 48 of 2014 before the Constitution Bench as early as possible preferably
within a period of three months.
50) All the interim orders granted earlier
will continue till final decision being taking by the Constitution Bench in Writ
Petition (Crl.) No.48 of 2014.
CJI.(P. SATHASIVAM)
J.(RANJAN GOGOI)
J.(N.V. RAMANA)
NEW DELHI;APRIL 25, 2014
