Wednesday, July 29, 2015

[Day 3] Constitution Bench Reference in Union of India v. Sriharan

[The report on arguments presented on Day 3 of the hearings (28.7.2015) is by Nishant Gokhale]

The Constitution Bench continued hearing the matter today. The Solicitor General was asked to continue his arguments today by the Bench from the point where he had left off on the previous date of hearing, i.e. 23rd July 2015.
At the outset the SG pointed out that the curative petition in the case of V. Sriharan v.  Union of India challenging the commutation of death sentence to life imprisonment was pending before the court today. When asked by the Bench whether that would change anything, the SG conceded that since the reference raised larger issues, they would have to be addressed, but if the curative petition were to be allowed, then in the facts of this present case, the issue of the power of the State Government or Central government to grant remission would become moot. However, the Bench requested him to proceed on the issues raised in the reference.
The SG proceeded to address the court on the Maru Ram case, urging that some conclusions in that case required to be revisited by this Bench. He submitted that while it was now beyond dispute that life imprisonment meant imprisonment for ones whole life, it would have to be seen how the power to grant remission would require to be construed in cases of life imprisonment. The SG submitted that there was a finding in the Maru Ram case that section 433-A of the CrPC could be treated as a guideline for exercise of powers under Art. 72 and Art. 161 of the Constitution thereby implying that it should ordinarily not be exercised in cases where 14 years of a life sentence had not been served. He further sought to draw support from the opinion of Justice Krishna Iyer in this case, where he describes sections 432 and 433 of the CrPC as being “modus operandi” of the powers under the Constitution. The bench however raised the query as to whether this was merely obiter dicta as the conclusion eventually reached was that these could act as a guidance for the exercise of constitutional power under Article 161. In response the SG stated that this position requires to be revisited as it was settled law that the power of these two high constitutional functionaries could not to be curtailed by the CrPC. He argued that the CrPC being merely a procedural and not a substantive law, could only lay down procedure to be followed but could not in any way curtail the powers of the Governor and President under the Constitution. He answered the query raised by the bench stating that there did not seem to be any conflict between the power available under Article 161 and the power to the State Government under the CrPC. He said that the CrPC was a subsequently enacted legislation and it would be presumed that the persons who drafted the CrPC knew about the powers and scope of Article 161 and therefore the powers of the State Government would always have to be read as subservient in the constitutional scheme. The SG thereafter read the case of Ashok Kumar @ Golu v. Union of India (1991) 3 SCC 498 which held that the observations in Maru Ram’s case that guidelines be framed in the case of exercise of powers under Art. 72 and 161 was merely obiter dicta and could not be considered to be in conflict with Kehar Singh’s case which has said that the power of pardon under Art. 72 is a high constitutional power which can operate in myriad ways and does not require any specific guidelines to be laid down.
In response to a query from the bench as to whether the powers of the Governor and President were to be exercised by them alone, the SG submitted that there was not a single instance  that could be pointed out where from 1961 till 2014, where it could be shown that the President or the Governor had “acted on their own”. He submitted that there was a constitutional bar on even the President to act contrary to the aid and advice of the council of ministers under the Constitution. In his support he read out Articles 74 and 77 of the Constitution which required the President to follow the aid and advise of the council of ministers and to frame rules of business for the government. He further drew support from Article 53 of the Constitution which states that the executive actions of the Union were to be carried out by the President or officers subordinate to him. He mentioned that the advise tendered by the council of ministers would be similar to he advise tendered under the CrPC and therefore it could not be said that sections 432 and 433-A  conferred any special powers upon the executive.
On a query by the bench, the SG admitted that Art. 72 and 161 did have some linkage with sections 432 and 433 of the CrPC and that it would be open to the prisoner to approach the same authority if there was a change in circumstances. On being asked by the bench as to what these circumstances could be, the SG submitted that these would mainly be a long period of incarceration, conduct in prison, health status of the prisoner, signs of reformation etc. and that these should be weighed by judicial determination as prescribed under section 432(2) of CrPC. The SG contended that while section 432(2) was only for remission and suspension of sentence and used the word “may”, but , argued that this word ought to be used as “shall” to section 433 which deals with commutation of sentence. However, the Bench however, identified several pitfalls such as lack of clarity as to which would be the appropriate court and if 161 and 72 powers could be exercised, even after the stat government has commuted the sentence based on judicial determination, it would still be subject to review by executive authorities, which could lead to embarrassing positions for the judiciary.
The SG thereafter started addressing the court on the first question raised in this reference. The SG argued that the courts in the past had  in several cases resorted to creative sentencing in some cases where consecutive sentences were handed out or where the prisoner after being found guilty had been spared the death penalty on a submission made by him that he would not seek remission for his whole life. The SG was thereafter reading from the case of Swamy Shdraddhanand and submitted that the bench was looking to create a rung in between death penalty and life imprisonment for a period of 14 years.
The SG will continue his arguments tomorrow (29.07.2015)
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