There should not be a sentence imposed which foreclosed the options of Remission and Commutation; Andhyarujina [Sriharan-Summary of Arguments;Day-8]

(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 arguments (6.8.2015) continued with Mr. Rakesh Dwivedi, Senior Advocate arguing for the State of Tamil Nadu.

The Bench was considering alternatives on how sentencing could be carried out so that as stated in Swamy Shraddananda’s case it was neither too less nor too harsh. Mr Dwivedi submitted that paragraph 91 of Swamy Shraddananda’s case (paragraph 67 of hyperlink) required the Court to consider if a separate category of “sentence” could be awarded in some cases. He submitted that this judgment was in the context of where life imprisonment was being awarded in lieu of the death sentence. He submitted that therefore while creation of a new sentence would be within the legislative domain, it would be open to the court to only award the sentences prescribed by law and that these sentences would necessarily be subject to provisions under the CrPC and Constitution of India. He submitted that any sentence which deprived the convict of the possibility of remission would severely prejudice the convict.

The Bench however questioned as to why this would prejudice the convict as in many cases, the court was giving a sentence lesser than death which was the maximum penalty in law. He submitted that putting the sentence beyond the pale of remission would deprive the prisoners of their right to be considered for remission which presented “a ray of hope” for the prisoner.  To this, the Bench suggested that they could think of passing a sentence where the matter could after a period of about 20 years come back to them to determine whether or not remission should be made applicable.

In exploring further alternatives, the Bench looked at the case of Subhash Chander v. Kishan Lal where the convict who was to be sentenced to death instructed his counsel that he would be willing to accept a sentence of life imprisonment without remission under the CrPC or the jail manual or similar rules. Mr. Dwivedi however submitted that such consent may be given by the prisoner in terrorem, as many people would choose any alternative punishment rather than the death penalty. He implored the court to not put the prisoners in such a position as courts may return to handing out brutal and unusual punishments merely in order to express the judge’s personal anger at the offence. He made reference to the Bloody Assizes where Judge Jeffreys was alleged to have invented punishments which were not known in either common law or statute. Mr. Dwivedi submitted that just as the Court could not direct the executive to grant remission in a particular case, it could not also direct that remission be withheld in a particular case.

The Court however asked Mr. Dwivedi as to why the court should not interfere as they had virtually legislated in the cases of Vishaka as well as the Prakash Singh case. Mr. Dwivedi replied that the court could, as it had previously done lay down guidelines until statutory law was enacted, but submitted that the powers of the court even under Article 142 are to be exercised within a limited sphere. He submitted that the case of Premchand Garg states that while the power under Article 142 is very wide, it cannot be exercised contrary to a fundamental right or contrary to a statute. He submitted that the power of the Supreme Court under Article 142 to do “complete justice” did not give it the power to supplant but merely supplement existing statutes and this power was to be understood as one which would aid the molding of relief in a particular case rather than the power to create law which would apply to all cases.

Mr. Dwivedi thereafter referred to the Criminal Sentences Act, 1997 and the Criminal Justice Act, 2003 in the United Kingdom which lays down sentencing guidelines. The United Kingdom currently permits whole life sentences but after the European Court of Human Rights judgment in Vinter v. UK it is necessary that the sentence is subject to review and the possibility of release is not taken away. He submitted that in the UK, there is possibility of early release and the quantum of the sentence is determined by a variety of factors such as the nature of the offence, circumstances of the convict etc. He submitted that the minimum sentence out of a life term, which is believed to have a punitive impact is called a “tariff” and the remainder of the sentence could serve other penological purposes. He submitted that while it may not be advisable to simply adopt these guidelines, some such guidelines could be laid down. Mr. Dwivedi further submitted that the right to be considered had been recognized by the Supreme Court in several cases. He submitted that the European Court of Human Rights had found life imprisonment without parole to be contrary to human dignity as well as the Namibian Supreme Court.   More on this can be found here.

Mr. Dwivedi thereafter submitted relying on the case of AR Antulay that no prejudice was required to be proved for vitiating any action by the State and it was sufficient to show merely that a fundamental right had been breached. He further submitted that it would be wrong by merely following the observations in Swamy Shradhhananda’s case to make a distinction as it would be violative of Article 14 of the Constitution. He further submitted that as held in the SCBA case, it was not open to the court to invent a new punishment not provided for in law.

He further submitted that the court by having the discretion to fix the terms of a life sentence before which the powers of remission would apply, would also violate Article 20 of the Constitution. He submitted that Article 20 was not only a protection against an ex-post facto law but also a protection against a greater punishment. The Bench however, queried as to whether imposing a punishment of 30 years where life imprisonment was specified would amount to a new punishment. Mr. Dwivedi argued that this would indeed amount to a punishment not sanctioned by law as all persons sentenced to life imprisonment would be entitled to be considered for remission under the CrPC after 14 years have elapsed under section 433-A of the CrPC.

Thereafter, Mr. Dwivedi concluded his arguments by stating that this judgment should have prospective effect so that the courts under it would have the power to consider passing a sentence to alternative to the death sentence.

Thereafter Mr. TR Andhyarujina, Senior Advocate who was representing a prisoner who had been sentenced to life imprisonment without remission under the CrPC, jail manual or any other rules put forth his case against life without remission.  Mr. Andhyarujina submitted that the question his case presented was a mixed question of criminal as well as constitutional law. At the outset, he submitted that the expression “mercy” petition was wrongly used as the power of the Governor and President under the Constitution was a high power, not even bound by the law laid down by the Court and therefore should not be reduced to the petitioner begging for mercy. He submitted that the clemency powers represented an important facet of the separation of powers as the Kehar Singh case had held that the President could hold, while exercising powers under Article 72 that he could make findings even contrary to those reached by the Supreme Court.  When asked by the Bench as to whether his client had applied before the Governor or President for clemency, he submitted that he had not as the prospects of getting any relief there were very less as these authorities usually did not interfere. He submitted that despite the powers of the court as well as the powers of the Governor and President, the legislature in its wisdom had enacted remission, suspension and commutation procedures under the CrPC. He submitted that sections 54 and 55 of the IPC also clearly contemplated that the appropriate Government had the power to commute sentences of death and life imprisonment. Hence, he submitted that there should not be a sentence imposed which foreclosed any of these options. While keeping his submissions brief in light of the fact that a number of cases had already been dealt with by Mr. Dwivedi, he submitted that the Maru Ram judgment was significant because it make a distinction between the actual judgment as well as the reasons for the judgment and this scope was open to review. He submitted that in Godse’s case the judiciary had deferred to the executive by refusing to interfere to grant remission until he became eligible for it. He also pointed to section 32-A of the NDPS Act which restricted the granting of any remission or exercise of clemency. He concluded by stating that handing out the sentence was the termination of the judicial exercise of power, and carrying out the sentence was within the executive’s domain.

Thereafter, Dr. Yug Mohit Chaudhary commenced arguments on behalf of Respondents No. 2 to Respondents No. 7 who are all but one prisoners convicted in the Rajiv Gandhi murder case. He sought to assist the court on the question of whether the court should in this reference, answer it in terms of propositions of law or on the facts of this case. He submitted that while the power under Article 143 (Reference to Supreme Court by President) of the Constitution could be exercised in relation to any question of law which had or may arise, the power under Article 145(3) under which the present reference was made, required the facts to be addressed by the Court. He submitted that he intended to lay before the court some facts which would be relevant for the adjudication of the present case. He submitted that in the present case, all the accused persons were acquitted of TADA, which is a central legislation. He further submitted that while they were convicted under offences under the Explosives Act, Foreigners Act and some other central legislations, the sentences under those legislations were no more than 2 years and had already been served. He submitted that for these offences, there was no question of remission as the sentence had already been undergone. He however submitted that they required the exercise of powers of remission for offence under section 302 of the IPC r/w 120-B of the Indian Penal Code. He submitted that the order of this Court dated 18.2.2014 commuting the death sentence of 3 of the convicts specifically directed that the sentence would be for the rest of their lives, but subject to remission. This was set out in paragraph 31 (of the official judgment). He submitted that against this, the Union of India had filed a Review Petition as well as a Curative Petition, quoting this very paragraph and specifically challenging it. He brought to the attention of this Hon’ble Court’s attention that both these petitions were dismissed. He submitted that the present writ petition also quotes this paragraph and raises it as a ground for challenge. He therefore concluded for today stating that the present petition would amount to nothing but a challenge to a final judgment of the Supreme Court by the Union through a public interest litigation by taking up the cause on behalf of the victims and acting as the parens patriae.

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