Thursday, July 23, 2015

Constitution Bench Reference in Union of India v. Sriharan

(The Centre on the Death Penalty at National Law University, Delhi will be posting daily reports of the arguments in the Constitution Bench matter in Union of India v. Sriharan)

[The report of the arguments presented on 22nd July 2015 is by Nishant Gokhale. Nishant graduated from NUJS Kolkata in 2011 and joined the Death Penalty Litigation Clinic at NLU Delhi in April 2015]

The Supreme Court today heard the reference made by a 3 judge bench to the Constitution Bench in a case which involves the fate of the persons who have been convicted of killing Rajiv Gandhi. Tied to their fate also, are the cases of several other prisoners who have been sentenced to life imprisonment.
On 18.2.2014, the Supreme Court of India in the case of V. Sriharan v. Union of India commuted the death sentences granted to the persons convicted of assassinating Rajiv Gandhi to life imprisonment subject to remissions as they may be eligible for under the CrPC. On the very next day, i.e. 19.2.2014, the State of Tamil Nadu wrote a letter to the Union of India stating that it was proposing to release 7 persons convicted for the assassination of Rajiv Gandhi and requested that the Centre communicate their views to the State within 3 days. Against this action the Union of India approached the Supreme Court asking that this letter dated 19.2.2014 be quashed. The Supreme Court in the case of Union of India v. V. Sriharan referred the questions raised in this case to a larger bench of 5 judges to determine various questions which have been raised through this petition.
The questions before the Bench which is headed by the Chief Justice of India are questions of constitutional importance which deal with the issue of the powers of the President and Governor to grant mercy as well as the determination as to who is the appropriate government to commute the sentences under the CrPC. This also considers important questions raised in the case of Swamy Shraddhanand v. State of Karnataka where the Supreme Court considered whether there was another alternative between life imprisonment (which it found may be too less if it is only for a few years) or death which they found to be too harsh and irreversible. This reference to the Constitution Bench therefore is also hearing questions relating to what should be the length of life imprisonment and whether these can take away the power of the executive to grant remissions, reprieve, commutations etc. This case is being closely watched as it has questions of constitutional significance as well as for the political overtones it may have. The case is also being followed closely inside jail by persons serving life sentences as the Supreme Court on 9th July 2014 had prohibited the State governments from granting remission to life convicts till the disposal of this case.

After the Supreme Court yesterday refused to go into the preliminary objection the State of Tamil Nadu had that the Union of India cannot have fundamental rights enforceable under Article 32 against the State of Tamil Nadu and that this should have been brought under the Supreme Court’s original jurisdiction under Article 131, it was decided that the matter would be heard on merits. Today the Solicitor General of India, Mr. Ranjit Kumar (“SG”) opened arguments by laying out the constitutional and statutory framework for exercise of powers of remission.

Articles 72 and 161
He said that the power of the President to commute sentences was broader in Art. 72 as it had 3 limbs 72(1)(a) which deals with court martials, 72(1)(b) which deals with all cases where punishment of sentence is for an offence to which the executive power of the Union extends and 72(1)(c) which deals with death sentences. Art. 72(3) is a non-obstante clause which states that despite 72(1)(c), the Governor's power as regards death sentences is not taken away where it is specifically provided for by a law for the time being in force. He read Art. 161 to state that it is similar only to 72(1)(b) and had nothing specifically to do with death sentences or court marshals and the Governor could only interfere in death sentence cases as provided for by law. His reading was that 72 was the broadest power and 161 only where law provided a Governor could act in a situation where the State's executive power extended. He said that the CrPC specifically empowered the state government in some cases which would be adverted to later, and outside of this the Governor could not have power, atleast as far as death cases are concerned.

Extent of Executive Power of the Union and the States
He said that the extent of executive power was explained in Art. 73 (Union) and Art. 162 (States). However, he said that it was a settled proposition that the Union can legislate on a subject in the State List where it is in the national interest (Art. 249), during emergencies (Art. 250) or by consent of the states (Art. 252) He therefore argued that since criminal law and criminal procedure are in the Concurrent List, there is no bar at all which operates on the extent of the Union's executive power.

Mercy and Governors
On a question from the bench that the power in relation to death sentences appeared could be simultaneously exercised, the SG admitted that it would be an embarrassing position if the President has rejected the mercy under a State legislation (such as Maharashtra Control of Organised Crime Act which provides for death penalty) and thereafter if the Governor was to be approached for a decision. The SG later during the hearing read out the MHA Guidelines on disposal of Mercy Petitions which states that the Governor would first have to dispose off the mercy petition before it went to the President.

On being asked about a possible overlap in the jurisdictions, he said that the Law Commission's 41st Report (para 29.6) which said that the Government of India Act, 1935 had section 295 which divided powers between the Governor General-in council and the Crown. While the Constitution has bunched both these powers together and there seems to be an overlap, this overlap is not harmful. He however said that he would reference Constituent Assembly Debates about these articles later during his arguments.

IPC Provisions
He then moved to the IPC where he read out some provisions such as sections 6, 7, 17 to set the context. He then argued that section 45 which defines "life" as the life of a human being would mean that life imprisonment was for the rest of the life of a person. He then read the punishments under section 53 where life imprisonment is one of the punishments prescribed. Section 54 provides the "appropriate government" with the power to commute death sentence to any other punishment provided for in the IPC. Section 55 provides the "appropriate government" the power to commute life imprisonment to any other sentence not exceeding 14 years imprisonment. Section 55A defines the appropriate government as being the Central Government where the Union's executive power extends and the State Government where the State's executive power extends as well as the state where the offender is sentenced. He said that therefore it is important that for the State to be the appropriate government, the issues of extent of executive power as well as situs of the trial would be material. 

He further argued that under section 57, when calculating fractions of imprisonment, life would be considered to be 20 years. Section 65 states that where a prisoner has not been able to pay fine, no more than 1/4th of the total period could be imposed as the sentence in default.

He argued that sections 392, 222, 457 and 458 specifically used the term "fourteen years" for the maximum period of punishment, whereas the offences introduced under the Criminal Law Amendment Act, 2013 in section 370(6) and 370 (7), 376-A, 376-D, 376-E use the term for "the remainder of that persons natural life".

To this the bench pointed out that before the 2013 Amendment there does not appear to have been the use of the expression "the remainder of that persons natural life". The bench also remarked if then life imprisonment such as that prescribed under section 302 mean something lesser?  The SG however said that the meaning of the term life imprisonment was very clear as laid down by Gopal Godse's case and Maru Ram's case.

CrPC Provisions
Coming to the provisions of the CrPC, the SG contended that the difference between section 432 and 433 was that while the former only kept the sentence in abeyance, the latter waived the sentence entirely. There was some debate about whether this would mean that the conviction and sentence would both go away or remain, but nothing conclusive was said nor any authorities cited.

As regards 433-A it prescribes that for commutation of sentence of life into a lesser sentence, no less than 14 years would actually have to be served. This, he argued, was in conformity with section 55 of IPC.

Regarding section 434 which grants the Center concurrent powers of remission the State government he submitted that this did not impose any bar on the Centre from extending this its executive power. He insisted that in this case, the refererence related to section 435 which requires the State Government to act in "consultation" with the Central Governments for an offence investigated by the CBI as in the present case for Rajiv Gandhi’s murder. While the bench said that the term consultation now had a judicially recognized meaning, the SG stated that he had only raised it as a specific question had been framed in the reference.

Exercise of powers by the Court:
The SG informed the court that the Supreme Court in a few cases had directed that the that life imprisonment be given without remission, or had fixed a period of life imprisonment between 35-25 years imprisonment or even directed that the period of remission would not start until a certain amount of time had been spent in jail.

The Solicitor General will continue his arguments tomorrow (23rd July 2015).
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