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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. – Apex court placed the same before the constitution Bench – Union of India …. Petitioner(s) Versus V. Sriharan @ Murugan & Ors. …. Respondent(s) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41465

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.=

 

     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  of  the  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.     

 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41465

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION
1 WRIT PETITION (CRL.) NO. 48 OF 2014

 

Union of India …. Petitioner(s)

Versus

V. Sriharan @ Murugan & Ors. …. Respondent(s)

2
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 sub-clause (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 law made 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 sub-
clause (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) 4 SCC 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 pre-mature 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 of the 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-à-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) of the 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 of the 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
———————–
39

 

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