A constitution bench of the Supreme Court of India has rendered its judgment in the case of Union of India v. V. Sriharan @ Murugan & Ors. on the issue of remission of sentences of the those involved in the assassination of former PM Rajiv Gandhi. The Court has held that the state of Tamil Nadu cannot unilaterally determine the remission of sentences in cases where investigation was conducted by agencies of central government.
Constitution bench of the court then heard the matter and reserved its judgment on 12 August 2015. Bench has now pronounced its judgment and has answered the seven questions referred to it.
Constitution Bench
The Constitution Bench consisted of Chief Justice of India HL Dattu and Justice Fakkir Mohamed Ibrahim Kalifulla, Justice Pinaki Chandra Ghose, Abhay Manohar Sapre and Uday Umesh Lalit.
Two opinions
The judgment of the Constitution Bench comprises of two opinions written by Justice Kalifulla and Justice Lalit. CJI Dattu and Justice Ghose have supported the judgment of Justice Kalifulla while Justice Sapre vide a short order has agreed with the opinion of Justice Lalit.
While there are two separate judgments, the conclusions of the two judgments differ only in respect of the second part of the answer to the first question. As put by Justice Lalit:
Our conclusions in respect of Questions referred in the Referral Order, except in respect of sub question (b) of Question in Para 52.1 of the Referral Order, are in conformity with those in the draft judgment of Hon’ble Kalifulla J. Since our view in respect of sub question (b) of Question in Para 52.1 of the Referral Order is not in agreement with that of Hon’ble Kalifulla J., while placing our view we have dealt with other questions as well.
Questions and Answers
Question 1
Question
Whether imprisonment for life in terms of Section 53 read with Section 45 of the 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(2), 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?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of life of the convict. The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court.
We hold that the ratio laid down in Swamy Shraddananda [@ Murali Manohar Mishra v. State of Karnataka reported in (2008) 13 SCC 767]that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well-founded and we answer the said question in the affirmative.
Justice Lalit & Justice Sapre
The sentence of life imprisonment means imprisonment for the rest of life or the remainder of life of the convict. Such convict can always apply for obtaining remission either under Articles 72 of 161 of the Constitution or under Section 432 Cr. P.C. and the authority would be obliged to consider the same reasonably.
{In our view, it would not be open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under Section 433A of Cr. P.C.}[dissenting view]
Question No. 2
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?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government.
Justice Lalit & Justice Sapre
In the circumstances, in our view it is permissible to the appropriate Government to exercise the power of remission under Section 432/433 Cr.P.C. even after the exercise of power by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32.
Question No. 3
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 the Union is co-extensive?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
Common answer to question no 3, 4 and 5.
The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah (supra) should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government
Justice Lalit & Justice Sapre
The executive powers of the Union and the State normally operate indifferent fields. The fields are well demarcated. Keeping in view our discussion in relation to Articles 73 and 162 of the Constitution, Section 55A of the IPC and Section 432 (7) of Cr.P.C. it is only in respect of sentence of death, even when the offence in question is referable to the executive power of the State, that both the Central and State Governments have concurrent power under Section 434 of Cr.P.C. If a convict is sentenced under more than one offences, one or some relating to the executive power of the State Government and the other relating to the Executive Power of the Union, Section 435(2) provides a clear answer. Except the matters referred herein above, Section 432 (7) of Cr. P.C. does not give primacy to the executive power of the Union.
Question No. 4
Whether the Union or the State has primacy over the subject matter enlisted in List III of the Seventh Schedule to the Constitution of India for exercise of power of remission?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
Check answer to question no. 3 above.
Justice Lalit & Justice Sapre
In respect of matters in list III of the 7th Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle there are two exceptions as stated in Proviso to Articles 73(1) of the Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend.
Question No. 5
Whether there can be two Appropriate Governments in a given case under Section 432(7) of the Code?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
Check answer to question no. 3 above.
Justice Lalit & Justice Sapre
There can possibly be two appropriate Governments in a situation contemplated under Section 435 (2) of Cr.P.C.. Additionally, in respect of cases of death sentence, even when the offence is one to which the executive power of the State extends, Central Government can also be appropriate Government as stated in Section 434 of Cr.P.C.. Except these two cases as dealt with in Section 434 and 435 (2) of Cr.P.C. there cannot be two appropriate Governments.
Question No. 6
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 subclause (2) of the same Section is mandatory or not?
Justice Kalifulla, CJI HL Dattu and Justice Ghose
No suo motu power of remission is exercisable under Section 432(1) of Code of Criminal Procedure It can only be initiated based on an application of the person convicted as provided under Section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court.
Justice Lalit & Justice Sapre
That suo motu exercise of power of remission under Section 432(1) is not permissible and exercise of power under Section 432(1) must be in accordance with the procedure under Section 432(2) of Cr.P.C.
Question No. 7
Whether the term “‘Consultation’” stipulated in Section 435(1) of the Code implies “‘Concurrence’”?”
Justice Kalifulla, CJI HL Dattu and Justice Ghose
Having regard to the principles culled out in paragraph 160 (a) to (n), it is imperative that it is always safe and appropriate to hold that in those situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of ‘‘Consultation’’ in reality be held as the requirement of ‘‘Concurrence’’.
Justice Lalit & Justice Sapre
In the premises as aforesaid, in our view the expression “consultation” ought to be read as concurrence and primacy must be accorded to the opinion of the Central Government in matters covered under clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C.
Matter back to three judge bench
After deciding the questions referred to it, the Constitution Bench has referred the matter back to a three judge to decide on the case. Bench observed:
Now that we have answered the Reference in the matters, the matters will now be listed before an appropriate three learned Judges’ Bench for appropriate orders and directions in the light of the majority Judgment of this Court.
A constitution bench of the Supreme Court of India has rendered its judgment in the case of Union of India v. V. Sriharan @ Murugan & Ors. on the issue of remission of sentences of the those involved in the assassination of former PM Rajiv Gandhi. The Court has held that the state of Tamil Nadu cannot unilaterally determine the remission of sentences in cases where investigation was conducted by agencies of central government.