State Govt. 'Appropriate Government' For Grant Of Remission Of Sentence For Convicts Under SC/ ST Act: Madras High Court

Madras High Court has held that the appropriate government for grant of remission of sentence to a person convicted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is the state government and not the Union government.

A Division Bench of Justices P.N Prakash and R. Hemalatha concluded that the executive power of the Union, as well as the state, is offence-specific. In such a scenario, the determining factor would be the identification of the government that possess the executive power pertaining to such offence.

Section 435(2) of Cr. P.C mentions that State Government should act after consultation with the Central Government in those matters for which the executive power of the Union extends to when the conviction and sentence are for different offences under multiple matters. Noting the above, the bench observed that the SC/ST Act was implemented by the parliament, but it does not mean that the offence comes within the ambit of Section 435(2).

The court further clarified that the executive power of the Union does not extend to matters under the concurrent list according to Article 73 of the Indian Constitution. The source of power for enacting the SC/ST Act can be traced back to Entry I in List III ( Concurrent List) of the Seventh Schedule. That being the case, Section 435(2) of Cr. P.C wouldn't affect remission of sentence of those convicted under SC/ST Act, the court underscored after referring to Constitution Bench judgment in Union of India v. Sriharan @ Murugan and Others (2016 7 SCC 1).

"Article 73(1)(a) of the Constitution states that the executive power of the Union shall extend to the matters with respect to which the Parliament has the power to make laws. Indisputably, the Parliament has the power to make laws in respect of subjects in the Union and concurrent list, i.e., List I and List III. However, the proviso to Article 73(1)(a) takes away the executive power of the Union in respect of matters in the concurrent list, except matters that are expressly provided in the Constitution or in any law made by the Parliament...", the court observed.

Madras High Court was answering the question of whether a conviction under the SC/ ST Act would be a bar for granting premature release as per G.O. (Ms.) No.64, Home (Prison-IV) Department in commemoration of former Chief Minister Dr M.G. Ramachandran. The prisoner's representation was not considered by Superintendent, Central Prison, Cuddalore. Afterwards, the High Court directed the state government to consider his representation. However, it was rejected on 10th May, 2019.

The State Government, in its counter affidavit, took the stand that the offence comes under the purview of Section 435(2) since the state opted not to make any legislation on the subject though it belongs to the concurrent list. The prisoner was convicted and sentenced under the Central Act which makes the Central Governemnt the competent authority to grant remission, the counter affidavit stated.

Refuting such an assertion, the court noted in the order as follows:

"If the argument of the State is to be accepted, then, the State Government cannot grant remission to a convict prisoner who has been convicted of the offence under Section 302 IPC, because, IPC also is a Central enactment, by virtue of Article 372 of the Constitution of India, albeit the fact that it was enacted in the year 1861."

The court observed that Kartar Singh v. State of Punjab, (1994) 3 SCC 569  has already discussed the scope of Entry I in List III as any matter that's criminal in nature including the offences under IPC, excluding offences against laws with respect to any of the matters specified in List I or List II. Since SC/ ST Act intends to punish a person or physical or verbal violence on a Dalit, it falls within the scope of Entry I in List III, the court noted.

Section 432(7) speaks about the 'appropriate government' being the 'Central government ' for the remission of sentences pertaining to offences under any law relating to a matter to which the "executive power of the Union extends". The executive power is not always synonymous with legislative power as evident from Article 73 of the Constitution. The proviso to Article 73(1)(a) states that the executive power of the Union would not extend in any state if the matter is something for which the legislature of the state also has the power to make laws. The fact that a Central Act is in force for governing the matter does not automatically confer executive power upon the Union on that subject matter, the court clarified.

Article 73 being such an exception to the general principle that the executive power of the Union is co-extensive with its legislative power is well documented in Constitution Bench judgment of Ishwar Das Malhotra vs. Union of India and Others (1972), the court remarked.

Before parting, the court also pointed out that the Government Order for Premature Release of Prisoners have expressly excluded persons convicted underseveral penal statutes like the Prevention of Corruption Act, 1988, Immoral Traffic (Prevention) Act, 1956, Drugs and Cosmetics Act, 1940, etc. and SC/ ST Act is not one of them.

"....G.O.64 (supra) clearly spells out the remission policy of the State Government and hence, we are afraid that there cannot be a policy exclusion outside the four corners of G.O.64. (supra). Where an authority disables itself from applying its mind to matters before it by self-created rules of policy, the exercise of power would be vitiated...", the court noted by relying on Khurdiram Das v. State of West Bengal & Ors (1975)

Therefore, the court set aside the Government Order rejecting the representation of the convict prisoner and asked the state to reconsider the application in accordance with their own Government Order within 8 weeks.

Case Title: K.V Komarasamy v. State of Tamil Nadu & Ors.

Case No: W.P. No.16702 of 2019

Citation: 2022 LiveLaw (Mad) 76

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