2015 (12) TMI 1918 - SC - Indian Laws

Remission and commutation of life imprisonment: Appropriate Government retains power to grant remission; life means natural life.

Interpretation of executive remission and commutation powers: life imprisonment under the Penal Code means imprisonment for the convict's natural life, ... Maintainability of the Writ Petition - Procedure for awarding sentence in criminal justice system - principle 'the rarest of rare cases' - Proposal to remit the sentence of life imprisonment and to release the respondent Nos. 1 to 7 in the Writ Petition who were convicted in the Rajiv Gandhi assassination case - imprisonment for life means till the end of convict's life with or without any scope for remission - special category of sentence instead of death for a term exceeding 14 years can be made by putting that category beyond grant of remission or not - power under Sections 432 and 433 Code of Criminal Procedure by Appropriate Government would be available even after the Constitutional power under Articles 72 and 161 by the President and the Governor is exercised as well as the power exercised by this Court under Article 32 - State or the Central Government have the primacy under Section 432(7) of Code of Criminal Procedure or not - two Appropriate Governments under Section 432(7) can exist or not - power under Section 432(1) can be exercised suo motu without following the procedure prescribed under section 432(2) or not - expression 'Consultation' stipulated in 435(1) really means 'Concurrence'. HELD THAT:- As rightly contended by the learned Solicitor General, we are also convinced that answer to those questions would involve substantial questions of law as to the interpretation of Articles 72, 73, 161 and 162, various Entries in the Seventh Schedule consisting of Lists I to III as well as the corresponding provisions of Indian Penal Code and Code of Criminal Procedure and thereby serious public interest would arise for consideration and, therefore, we do not find it appropriate to reject the Reference on the narrow technical ground of maintainability. We, therefore, proceed to find an answer to the questions referred for consideration by this Constitution Bench. The Executive Power of the Union and its authorities in relation to grant of remission, commutation etc., are available and can be exercised by virtue of the implication of Article 73(1)(a) read along with its proviso and the exercise of such power by the State would be controlled and limited as stipulated in the proviso to Article 162 to the extent to which such control and limitations are prescribed in the Code of Criminal Procedure. A close reading of the various Constitutional provisions on the Executive Power of the Centre and the State disclose the Constitutional scheme of the framers of the Constitution to prescribe different types of such Executive Powers to be exercised befitting different situations. However, the cardinal basic principle which weighed with the framers of the Constitution in a democratic federal set up is clear to the pointer that it should be based on 'a series of agreements as well as series of compromises'. In fact, the temporary Chairman of the Constituent Assembly, the Late Dr. Sachidananda Sinha, the oldest Parliamentarian in India, by virtue of his long experience, advised; 'that reasonable agreements and judicious compromises are nowhere more called for than in framing a Constitution for a country like India'. His ultimate request was that; 'the Constitution that you are going to plan, may similarly be reared for 'immortality', if the rule of man may justly aspire to such a title, and it may be a structure of adamantine strength, which will outlast and overcome all present and future destructive forces'. With those lofty ideas, the Constitution came to be framed. We are, therefore, able to discern from a reading of the various provisions of the Constitution referred to above, to be read in conjunction with Articles 72, 73, 161 and 162, which disclose the dichotomy of powers providing for segregation, combination, specific exclusion (temporary or permanent), interrelation, voluntary surrender, one time or transitional or temporary measures, validating, superscriptus, etc. We are also able to clearly note that while the Executive Power of the State is by and large susceptible to being controlled by the Executive Power of the Union under very many circumstances specifically warranting for such control, the reverse is not the case. It is quite apparent that while the federal fabric of the set up is kept intact, when it comes to the question of National Interest or any other emergent or unforeseen situations warranting control in the nature of a super-terrestrial order (celestial) the Executive Power of the Union can be exercised like a bull in the China shop. Having thus made an elaborate analysis of the Constitutional provisions relating to the relative Executive Power of the Union and the State as it exists and exercisable by the respective authorities in the given situations, we wish to examine the provisions specifically available in the Indian Penal Code, Criminal Procedure Code, as well as the Special enactment, namely, the Delhi Special Police Establishment Act under which the CBI operates, to understand the extent of powers exercisable by the State and the Centre in order to find an answer to the various questions referred for our consideration. Having noted the scope and ambit of the said Special Act, it is also necessary for our present purpose to refer to the communication of the Principal Secretary (Home) to Government of Tamil Nadu addressed to the Joint Secretary to Government of India, Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (supra), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission’. - As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant Rules based on his/her good behavior or such other stipulations prescribed therein. The other remission is the grant of it by the Appropriate Government in exercise of its power under Section 432 Code of Criminal Procedure Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid down in Swamy Shraddananda [2008 (7) TMI 1131 - SUPREME COURT] Keeping the above perception of the Rule of Law and the settled principle of Criminal Law Jurisprudence, this Court expressed its concern as to in what manner even while let loose of the said appellant of the capital punishment of death also felt that any scope of the appellant being let out after 14 years of imprisonment by applying the concept of remission being granted would not meet the ends of justice. With that view, this Court expressed its well thought out reasoning for adopting a course whereby such heartless, hardened, money minded, lecherous, paid assassins though are not meted out with the death penalty are in any case allowed to live their life but at the same time the common man and the vulnerable lot are protected from their evil designs and treacherous behavior. Therefore, it must be held that there is every scope and ambit for the Appropriate Government to consider and grant remission under Sections 432 and 433 of the Code of Criminal Procedure even if such consideration was earlier made and exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution by this Court is concerned, we have already held that the power under Sections 432 and 433 is to be exercised by the Appropriate Government statutorily, it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government, even if someone approaches this Court under Article 32 of the Constitution. We answer the said question on the above terms. CONCLUSIONS - Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of life of the convict. The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court. We hold that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well-founded and we answer the said question in the affirmative. The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government. The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah [1973 (10) TMI 62 - SUPREME COURT] should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government. No suo motu power of remission is exercisable under Section 432(1) of Code of Criminal Procedure It can only be initiated based on an application of the person convicted as provided under Section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court. Having regard to the principles culled out in paragraph 160 (a) to (n), it is imperative that it is always safe and appropriate to hold that in those situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of 'Consultation' in reality be held as the requirement of 'Concurrence'. We thus answer the above questions accordingly. Issues: (i) Maintainability of the Union's writ under Article 32 and the referred constitutional questions; (ii) Whether life imprisonment under Section 53 read with Section 45 IPC means imprisonment for the remainder of the convict's life and whether courts may create a special category of life-term beyond remission (per Swamy Shraddananda); (iii) Whether the Appropriate Government may exercise statutory remission/commutation under Sections 432/433 CrPC after the President/Governor has exercised constitutional clemency or after exercise of Article 32 by this Court; (iv) Whether Section 432(7) CrPC or the constitutional scheme gives primacy to the Union over the State for remission in concurrent-field cases and whether two Appropriate Governments can arise; (v) Whether remission under Section 432(1) may be exercised suo motu and whether the procedure in Section 432(2) is mandatory; (vi) Whether the word 'consultation' in Section 435(1) CrPC implies 'concurrence'.Issue (i): Maintainability of the Union's writ and the constitutional reference.Analysis: The questions involve substantial questions of law concerning Articles 72, 73, 161, 162, Entries in the Seventh Schedule and CrPC/IPC provisions; public interest and national implications justify constitution bench consideration.Conclusion: The Writ Petition by the Union under Article 32 is maintainable.Issue (ii): Whether life imprisonment means imprisonment for the remainder of the convict's life and whether courts may impose a special non-remittable substituted life-term (as suggested in Swamy Shraddananda).Analysis: Prior Constitution Bench authority (Godse, Maru Ram and followings) treats life imprisonment as incarceration for the remainder of natural life; remissions earned under prison rules take effect only if executive commutation/remission occurs; statutory minimums (Section 433A CrPC) establish a floor of 14 years but do not alter the character of life imprisonment. The court examined the rationale and consequences of adopting an intermediate sentencing category and considered legislative recommendations (e.g., Malimath) and comparative law.Conclusion: Life imprisonment under Section 53 read with Section 45 IPC means imprisonment for the remainder of the convict's natural life; a court may not, by judicial order, create a new special category that puts a sentence beyond the statutory remission regime or stipulate mandatory minimums inconsistent with Section 433A; the courts cannot, by judicial fiat, displace the executive's statutory remission power or legislate a new punishment.Issue (iii): Whether the Appropriate Government may exercise statutory remission/commutation after the President/Governor or this Court has exercised constitutional/judicial power.Analysis: Constitutional clemency (Articles 72/161) and statutory powers (Sections 432/433 CrPC) are distinct in source and substance though coextensive in effect in some cases; Maru Ram holds the statutory powers are not mere manifestations of constitutional clemency; Section 433A contemplates subsequent executive action; principles of judicial review apply to executive action that is arbitrary.Conclusion: The Appropriate Government may exercise statutory remission/commutation under Sections 432/433 CrPC even after exercise of constitutional clemency by the President or Governor or after the Court's exercise of Article 32; the executive's power may be exercised again subject to law and judicial review.Issue (iv): Whether Section 432(7) CrPC or the constitutional scheme gives primacy to the Union in concurrent-field cases and whether two Appropriate Governments can exist.Analysis: Executive competence follows the constitutional allocation of executive power (Articles 73 and 162) and the tests in Section 432(7) and Section 55A IPC; where Parliament has expressly conferred executive power on the Union (or Central law plainly occupies the field under the proviso to Article 73(1)), the Central Government will be the Appropriate Government; Section 434/435(2) deal with concurrent situations (death sentences, concurrent terms) and permit Central role; otherwise the State is normally the Appropriate Government.Conclusion: Section 432(7) does not ipso facto give primacy to the Union; the Appropriate Government is determined case-by-case by reference to the offence and the constitutional/legislative indicia; two Appropriate Governments can arise in the specific situations contemplated by Sections 434 and 435(2) but not generally.Issue (v): Whether Section 432(1) CrPC permits suo motu remission and whether Section 432(2) procedure is mandatory.Analysis: Section 432(1) is an enabling provision but Section 432(2) prescribes the statutory procedure (application, obtaining the presiding judge's opinion, certified record) to ensure informed, non-arbitrary exercise; precedent and statutory text favour mandatory adherence to the procedure and reject automatic or purely suo motu exercise without following sub-section (2).Conclusion: Suo motu exercise of remission under Section 432(1) is not permissible; the procedure in Section 432(2) is mandatory and must be followed.Issue (vi): Whether 'consultation' in Section 435(1) CrPC implies 'concurrence'.Analysis: The meaning of 'consultation' depends on context and statutory purpose; clauses (a)(c) of Section 435(1) concern cases investigated by central agencies, damage to central property, or offences by central servantsmatters of national interest and Union expertise; precedents on 'consultation' (appointment contexts) show that where a consultee has primacy by role or subject-matter expertise, 'consultation' may amount to effective concurrence to protect the statutory purpose and national interest.Conclusion: In the circumstances covered by Section 435(1)(a)(c) the State Government must not act unilaterally; the consultation requirement must be treated in practice as concurrence (i.e., the Central Government's role has primacy and the State must obtain and heed the Central view before exercising Sections 432/433).Final Conclusion: The Union's writ is maintainable; life imprisonment means imprisonment for the remainder of natural life; statutory remission/commutation remains available even after prior exercise of constitutional clemency or judicial commutation; the Appropriate Government is determined by constitutional/legislative tests (Centre where statute/Constitution confers executive power; State otherwise), two Appropriate Governments arise only in statutoryly specified circumstances; suo motu remission under Section 432(1) is impermissible and Section 432(2) is mandatory; consultation under Section 435(1) in the specified categories must be treated as requiring effective concurrence from the Centre.Ratio Decidendi: Life imprisonment under Section 53 read with Section 45 IPC denotes imprisonment for the remainder of the convict's natural life; statutory remission and commutation under Sections 432/433 CrPC are distinct executive powers that remain exercisable notwithstanding prior exercise of constitutional clemency, but must follow the statutory procedure; determination of the 'Appropriate Government' follows the constitutional allocation of executive power (Articles 73/162 and enabling statutes) and where Section 435(1)(a)(c) is engaged the Central Government's concurrence is required in practice to protect national interest and the statutory scheme.