Constitution Bench started hearing Union of India vs. Sriharan , referred by Three Judge Bench; Read the summary of Arguments by SG [Day-1]

(The Centre on the Death Penalty at National Law University, Delhi will be posting daily reports of the arguments in the Constitution Bench matter in Union of India v. Sriharan)[We would like to thank Dr.Anup Surendranath and Centre on the Death Penalty at National Law University, Delhi for this initiative. We also would like to thank the Law and Other Things Blog where it is first published.]The Supreme Court Yesterday heard the reference made by a 3 judge bench to the Constitution Bench in a case which involves the fate of the persons who have been convicted of killing Rajiv Gandhi. Tied to their fate also, are the cases of several other prisoners who have been sentenced to life imprisonment.On 18.2.2014, the Supreme Court of India in the case of V. Sriharan v. Union of India commuted the death sentences granted to the persons convicted of assassinating Rajiv Gandhi to life imprisonment subject to remissions as they may be eligible for under the CrPC. On the very next day, i.e. 19.2.2014, the State of Tamil Nadu wrote a letter to the Union of India stating that it was proposing to release 7 persons convicted for the assassination of Rajiv Gandhi and requested that the Centre communicate their views to the State within 3 days. Against this action the Union of India approached the Supreme Court asking that this letter dated 19.2.2014 be quashed. The Supreme Court in the case of Union of India v. V. Sriharan referred the questions raised in this case to a larger bench of 5 judges to determine various questions which have been raised through this petition.The questions before the Bench which is headed by the Chief Justice of India are questions of constitutional importance which deal with the issue of the powers of the President and Governor to grant mercy as well as the determination as to who is the appropriate government to commute the sentences under the CrPC. This also considers important questions raised in the case of Swamy Shraddhanand v. State of Karnataka where the Supreme Court considered whether there was another alternative between life imprisonment (which it found may be too less if it is only for a few years) or death which they found to be too harsh and irreversible. This reference to the Constitution Bench therefore is also hearing questions relating to what should be the length of life imprisonment and whether these can take away the power of the executive to grant remissions, reprieve, commutations etc. This case is being closely watched as it has questions of constitutional significance as well as for the political overtones it may have. The case is also being followed closely inside jail by persons serving life sentences as the Supreme Court on 9th July 2014 had prohibited the State governments from granting remission to life convicts till the disposal of this case.After the Supreme Court yesterday refused to go into the preliminary objection the State of Tamil Nadu had that the Union of India cannot have fundamental rights enforceable under Article 32 against the State of Tamil Nadu and that this should have been brought under the Supreme Court’s original jurisdiction under Article 131, it was decided that the matter would be heard on merits. Today the Solicitor General of India, Mr. Ranjit Kumar (“SG”) opened arguments by laying out the constitutional and statutory framework for exercise of powers of remission.Articles 72 and 161He said that the power of the President to commute sentences was broader in Art. 72 as it had 3 limbs 72(1)(a) which deals with court martials, 72(1)(b) which deals with all cases where punishment of sentence is for an offence to which the executive power of the Union extends and 72(1)(c) which deals with death sentences. Art. 72(3) is a non-obstante clause which states that despite 72(1)(c), the Governor's power as regards death sentences is not taken away where it is specifically provided for by a law for the time being in force. He read Art. 161 to state that it is similar only to 72(1)(b) and had nothing specifically to do with death sentences or court marshals and the Governor could only interfere in death sentence cases as provided for by law. His reading was that 72 was the broadest power and 161 only where law provided a Governor could act in a situation where the State's executive power extended. He said that the CrPC specifically empowered the state government in some cases which would be adverted to later, and outside of this the Governor could not have power, atleast as far as death cases are concerned.Extent of Executive Power of the Union and the StatesHe said that the extent of executive power was explained in Art. 73 (Union) and Art. 162 (States). However, he said that it was a settled proposition that the Union can legislate on a subject in the State List where it is in the national interest (Art. 249), during emergencies (Art. 250) or by consent of the states (Art. 252) He therefore argued that since criminal law and criminal procedure are in...

Constitution Bench started hearing Union of India vs. Sriharan , referred by Three Judge Bench; Read the summary of Arguments by SG [Day-1]

Nishant Gokhale

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