Union of India v Sriharan and ors (writ petition no. 48 of 2014)
LifeSentence andRemissionFactual Background:The petitioner has challenged a letter issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the state of Tamil Nadu proposed to set aside the sentence of life imprisonment and to release the respondents convicted in the Rajiv Gandhi assassination case. The respondents were originally imposed with a death sentence but the same court commuted the death sentence to life imprisonment. The issued letter by the state govt. of Tamil Nadu resulted in this writ petition.
(i) Whether imprisonment for life under S.53 read with S.45 of the IPC meant imprisonment for the rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether the principles enunciated in Swamy Shraddananda, a special category of a sentence may be made for the very few cases where the death the penalty might be reduced by the punishment of imprisonment for life or imprisonment for a term above 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 S.432/433 of the Code after the parallel power has been exercised by the President under Art.72 or the Governor under Art.161 or by this Court in its Constitutional power under Art.32 as in this case?
(iii) Whether S. 432(7) of the Code 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 the exercise of the power of remission?
(v) Whether there can be two appropriate Governments in a given case under S. 432(7) of the Code?
(vi) Whether suomoto exercise of the power of remission under S. 431(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 S. 435(1) of the Code implies “concurrence”?
Reasoning and discussion:As for the first issue, the SC opined that imprisonment for life according to S.53 and S.45 of IPC means imprisonment for the rest of life of the prisoner subject to the right to claim remission, and such remission power is exercisable by the President and Governor of the state provided under Art. 72 and 161 of Indian Constitution; as also provided under S.432 of CrPC. The court holds the decision of Swamy Shraddananda‘s case as a special category of sentence, death penalty reduced to life imprisonment which is beyond the application of remission. Secondly, the court observed that S. 432 and S. 433 of the CrPC provide power to the appropriate government to suspend or grant remission, and not to the court. The decision-making power is always imposed upon the appropriate government even if the power was exercised earlier by the Governor or President under Art.161 or by the Court under Art. 32 of the Constitution. Thirdly, the court analyzed the status of appropriate government; when the order of a sentence passed by the Criminal Court under any law which falls within the provision of Art.73(1)(a) of the Constitution, the appropriate government would be the central government for exercising its power of remission, suspension and commutation under S.432 and S. 433 of CrPC even if the legislature of the state is also entitled to make a law on the same subject. However, when the offender is sentenced within the territorial jurisdiction of the concerned state, the state govt. would be the appropriate govt. Fourthly, the court ruled that suomoto power of remission cannot be exercised by the appropriate govt. under S.432 of the Code, it has to be initiated by the convicted person under S.432(2). The order of suspension or remission should be guided by the opinion to be rendered by the presiding officer of the Court concerned and following provision S.432(2) is mandatory. Finally, the court denotes that any situations under the sub-clauses (a) to (c) of S.435(1) fall within the jurisdiction of central govt., which is important in the process of “consultation” as a requirement of “concurrence”.
Decision:The SC held that the Tamil Nadu govt. cannot use statutory powers of remission to release the convicts of Rajiv Gandhi’s assassination without the concurrence of the central govt. As the investigation was carried by the central agency i.e. CBI, the Central Govt. will decide on the remission according to S.435 of CrPC; the Tamil Nadu govt was required to consult with the Central Govt. However, the state govt. certainly can use the power under Art.161 to commute their sentence on the grounds that there has been a change in the situation and there is a rejection of mercy petition by the Governor which was no longer relevant.