Filing of more than one Mercy Petition is permissible both under Cr.P.C and Constitution ; State of TN to Constitution Bench [Summary of Arguments in Sriharan Day-7]

The arguments today (5th August 2015) were continued by the State of Tamil Nadu through Mr. Rakesh Dwivedi, Senior Advocate.

Continuing on the second question referred to the constitution bench, Mr. Dwivedi argued to counter the argument of the Solicitor General that the power of mercy could not be exercised repeatedly. He submitted that the CrPC and the Constitution permitted filing of more than one mercy petition even though it may have previously been filed and decided. He contended that section 433-A itself contemplated a fresh exercise of the power of remission where a sentence of death was commutated to one of life imprisonment. He submitted that Kehar Singh’s case had laid down the law that the exercise of powers under Articles 72 and 161 could not be governed by judicial dicta. He further submitted that in the case of G Krishtha Goud v. State of Andhra Pradesh, it was held that the rejection of one clemency petition does not exhaust the power of the President and Governor. He argued that it would be open to exercise the powers under section 432 and 433 even after the exercise of powers under Article 72 and 161 of the Constitution. He argued that this was a fit case where circumstances had fundamentally changed as the LTTE was considerably weakened and its head who was named as an the main conspirator had been killed.

Responding to the queries of the Bench on whether the practice of filing repeated mercy petitions and also petitions challenging its rejection needed to be checked, Mr. Dwivedi submitted that there appeared to be no material placed by the Union to show that this had caused any problems or delayed the execution of the death sentence. He submitted that in death sentence cases, even if some delay was caused, it should be accommodated as the condemned prisoner was clutching to life. He submitted that in such cases, the benefit of the doubt should go to the prisoner since the death sentence is irreversible. He pointed out that in case of death sentences, the Instructions issued by the Ministry of Home Affairs and several jail manuals only required that an automatic stay of execution only be granted after the first mercy petition had been sent and for all other subsequent petitions, an order of stay would have to be asked for from the courts or the executive. He submitted that if the concern was that the Supreme Court would be overburdened by cases of prisoners who were seeking to delay the date of execution, he said a change could be made in the Supreme Court Rules to limit the number of times petitions challenging decisions rejecting clemency could be filed. He submitted that the States were competent authorities to deal with clemency petitions at their own level by appropriately advising the Governor. He submitted that if the Union was in any way aggrieved, it was always open to them to amend both the CrPC as well as the Constitution as neither currently imposed a bar on the number of petitions which could be filed. When the Bench suggested that they could, in their judgment indicate that they would want to cap the number of times a clemency petition could be filed or challenged, he implored them to not do so as that would be interfering in the legislative domain. He submitted that in the present case, they are not dealing with any cases of death sentence as the prisoners who were sentenced to death have had their sentences commuted to life imprisonment and therefore these observations, if made, would be wholly out of place if made in this case.

Mr. Dwivedi further submitted that it was highly improbable that if the power of remission was left to the State Government, it could be misused by the Governor. He relied on Article 167 of the Constitution which outlines the duties of the Chief Minister and the debates that took place on the Governor’s powers in the Constituent Assembly (Article 147 of Draft Constitution). He submitted that the Governor could not over-rule the Ministers but could only warn, suggest or advise the ministers on the course of action adopted or to be adopted. On a query by the court, however, he conceded that he was not aware of a case where the Governor had exercised the powers under Article 167 (c) of the Constitution to send a decision to grant or withhold remission by a Minister back to the Council of Ministers for reconsideration.

While addressing arguments on question No. 6 referred to the constitution bench, Mr. Dwivedi submitted that it was not necessary for an application under 432(1) to be moved as it uses the term “anytime”. He further submitted that in the case ofMohinder Singh v. State of Punjab no application had been submitted and the State had initiated action suo moto. He submitted that the power under section 432(1) was the procedural portion and was a complete power in itself.

On the issue of the power under section 432(2) he submitted that this power was discretionary and required an application to be filed as stated in the sub-section. He stated that despite the Law Commission’s recommendations on the previous CrPC (where 432(2)corresponds to section 401(2)) the legislature had chosen not to take action to make this a mandatory power. The Law Commission had expressed its view in the 35^th Report (paragraph 1085), the 41^st Report(paragraph 29.4) as well as the 48^th Report (paragraphs 46 & 47). He also submitted that the wording of section 432(2) was problematic as it was unclear as to which court’s opinion would be taken (the sentencing or confirming court), if this opinion would be a judicial or administrative order and what was meant by the term “Presiding Judge” as used in the sub-section. He submitted that in cases under TADA, the Supreme Court was itself the confirming court and it would have to be the Presiding Judge of the Supreme Court (the Chief Justice or the senior judge on the bench which confirmed the sentence) who would have to give an opinion on the issue of sentence. He submitted that the decision of the Full Bench of the Punjab High Court in the case of Hukam Singh v. State of Punjab clearly held that the provisions of 401(2) of the Old CrPC was not a mandatory provision.

Addressing arguments on the first question referred to the constitution bench on the interpretation of life imprisonment, he submitted that the power under section 432 CrPC permitted remission of the whole sentence. He submitted that the term life imprisonment should be interpreted to mean life imprisonment for the natural life of the prisoner subject to the powers of remission under the CrPC and the Constitution of India. He further reiterated that while the prisoner did not have a right to be released, he had a right to be considered for remission. The bench however wondered if this right would trump the right of the victims to get justice. The bench thereafter referred to the queries raised in Swamy Shraddhanand’s case and asked Mr. Dwivedi whether (1) the Court could impose a sentence beyond the power of remission and (2) whether in the absence of a life term which was perceived to be harsher than 14 years, judges would be nudged towards awarding death sentence.

Mr. Dwivedi argued that if courts were empowered to put life sentences beyond the scope of remission, then it would amount to repealing section 432 and 433 of the CrPC. Further, he submitted that across the world, wherever life imprisonment had been imposed for a fixed term, it was through legislation and not through judicial decisions. He submitted that there was no principled distinction which could be drawn between cases where life imprisonment without remission for 30 years was awarded and cases where a fixed period of sentence of 21 years was awarded although the crime seemed more heinous and brutal in the latter case. He highlighted that there would be a danger in courts entering this area as it dealt with sentencing policy and would require courts to venture into the legislative domain. In response to the Bench’s suggestion that they were empowered to pass any sentence in between life imprisonment and death sentence, he responded stating that the option was either life imprisonment or death sentence. The courts could not, of their own, determine how much the quantum of life imprisonment should be. The Bench asked as to why the Court could not ensure that some persons accused of extremely grave offences should ever be released from jail at the time of sentencing itself. To this, he responded that the stage of sentencing was not the time to make that determination as to whether or not they should or should not be released from jail as that was to be seen from the effect that the punishment had on the prisoner as regards reformation. He further submitted that to set a minimum amount of period before which remission could be granted would amount to the judiciary amending section 433-A. He submitted that he had no problem if the legislature carried out the requisite amendments, but it was not the place of the courts to do it.

There was an animated debate between him and the bench as to what would be the appropriate quantum of sentence to which he conceded that perhaps seeking the opinion of the judicial officer under section 432(2) could be made mandatory. However there was disagreement on the issue of what the weight of this opinion would be. Mr. Dwivedi however, submitted that such a provision was not there in commutation of sentences under section 433 CrPC and the only possible recourse would be for the Union to seek instructions to amend the CrPC and Constitution. He submitted that since the Union was purportedly acting on behalf of the victims under the doctrine of parens patriae, it would be shirking its duty by not seeking legislative amendment to the provisions which aggrieve them rather than calling for the Courts to bring changes into what was clearly legislative domain.

The bench rose for the day at this point and will resume again on 6.8.2015.

Nishant graduated from NUJS Kolkata in 2011 and joined the Death Penalty Litigation Clinic at NLU Delhi in April 2015