Constitution Bench on remission power in Rajiv Gandhi assassination case

Union of India v. V.Sriharan @ Murugun and Ors.

In V. Sriharan @ Murugan v. Union of India and Ors., (2014) 4 SCC 242, AIR 2014 SC 1368, the death sentence imposed on respondents was commuted to life sentence. Immediately thereafter, the impugned letter was issued by the State of Tamil Nadu wherein it proposed to remit the sentence of life imprisonment and to release the respondents who were convicted in the Rajiv Gandhi assassination case. The said letter was challenged in writ petition filed by Union of India wherein the Court framed the following seven questions and referred them for consideration by the Constitution Bench.

1. 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 Swamy Shraddananda (2), (AIR 2008 SC 3040) 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?
2. Whether the “Appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case?
3. Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is co-extensive?
4. Whether the Union or the State has primacy over the subject matter enlisted in List III of the Seventh Schedule to the Constitution of India for exercise of power of remission?
5. Whether there can be two Appropriate Governments in a given case under Section 432(7) of the Code?
6. Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in sub-clause (2) of the same Section is mandatory or not?
7. Whether the term ‘Consultation’ stipulated in Section 435(1) of the Code implies ‘Concurrence’?

The Constitution Bench held that the writ petition filed by Union of India is maintainable. It held that imprisonment for life only means imprisonment for rest of life of the convict. Being constitutional remedies, the right to claim remission, commutation, reprieve etc. will be always available which will remain untouchable by the court. As proposed, 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 that category can be put beyond application of remission.

The exercise of power of remission will be available to the Appropriate Government even if such consideration was made earlier and exercised by the President or by the Governor. These powers are to be exercised only by the Appropriate Government statutorily and not by the Supreme Court under Article 32 of Constitution 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. 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.

It was held that no suo motu power of remission is exercisable under Section 432(1) CrPC. Only if an application is moved by the convict, such an action can be initiated 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.

On the issue whether the term ‘consultation’ stipulated in s 435(1) of the Code implies ‘concurrence’, the court answered in affirmative and held 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’.