Limits to remission powers

Print edition : January 08, 2016

The Supreme Court’s five-judge Constitution Bench delivered its judgment in Union of India vs V. Sriharan @ Murugan & Others on December 2, the last day of the tenure of Chief Justice of India Justice H.L. Dattu. He presided over the bench. The judgment is likely to determine the fate of a number of prisoners across the country, who look forward to remission of their period of imprisonment by the Centre or the governments of their respective States.

A key question examined by the bench was whether creating a special category of sentence for a life term exceeding 14 years and putting that category beyond the application of remission was good in law. The question assumed significance because in many cases the Supreme Court commuted the death sentence imposed by the lower courts to a life sentence and held that a life sentence in such cases would mean the rest of the convict’s lifespan and the court could hold a certain period of a life sentence exceeding 14 years as ineligible for remission, considering the gravity of the crime.

Here, the December 2 judgment made a distinction between the constitutional power of remission provided by Articles 72 and 161 of the Constitution and the statutory power of remission provided by Section 433A of the Code of Criminal Procedure (CrPC). The bench, in its majority judgment, held that Section 433A of the CrPC only prescribed a minimum imprisonment of 14 years for life convicts. Also, if the court thought that a convict, because of the gravity of the crime committed, should undergo imprisonment for a specified period beyond 14 years without any scope for remission, then it would be justified. The two dissenting judges, however, reasoned that a life convict so deprived of the benefit of remission would be in a far worse situation than a death-row convict, who would be eligible for the same benefit of remission under the law.

The majority judgment in the case was authored by Justice Fakkir Mohamed Ibrahim Kalifulla on behalf of himself and Justice Dattu and Justice Pinaki Chandra Ghose.

Justice Uday Umesh Lalit authored the dissent on behalf of himself and Justice Abhay Manohar Sapre.

Despite this major disagreement among them, there was consensus among the five judges that the exercise of remission power under Sections 432 and 433 of the CrPC would be available to the appropriate government even if the power was exercised earlier under Article 72 by the President or under Article 161 by the Governor.

They were also unanimous that the statutory power of remission exercised under Section 432(1) the CrPC could not be exercised by the appropriate government suo motu and could only be initiated on the basis of an application from the convict and that the ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the court concerned.

Between State and Centre

The bench held unanimously that in situations falling within the jurisdiction of the Central government, it would assume primacy with regard to exercise of remission powers and that the process of consultation between the State government and the Centre over remission in a particular case would be interpreted as the requirement of concurrence by the latter.

Section 435(1) of the CrPC provides that the powers conferred upon the State government to remit or commute a sentence in a case where the sentence is for an offence investigated by the Central Bureau of Investigation (CBI); or which involved misappropriation of, destruction of or damage to any property belonging to the Central government; or which was committed by a Central government employee shall not be exercised by the State government except after consultation with the Central government.

Thus, it is clear that in the case of convicts in the Rajiv Gandhi assassination case, which was investigated by the CBI, the State government must get the consent of the Central government before exercising its remission powers.

Rajiv Killers case

Reading both the majority and dissenting judgments together, one finds that the reasoning adopted by the dissenting judges is more persuasive than what is offered by the majority judges. According to the dissenting judges, in the case of the Rajiv Gandhi assassination convicts, what remains is their sentencing under Section 302 of the Indian Penal Code (IPC), as they had already completed the sentences imposed under other provisions being dealt by the Union. The dissenting judges found force in Tamil Nadu’s plea that the offence under Section 302 of the IPC is directly related to “public order” in the State List of the Seventh Schedule to the Constitution and is in the exclusive domain of the State government. As the convicts stand acquitted insofar as offences under the Terrorist and Disruptive Activities (Prevention) Act, or TADA, are concerned, it is the State government that can legitimately exercise remission powers, they said.

However, the dissenting judges agreed with the majority judges that greater weight ought to be attached to the opinion of the Central government, which through the CBI or other Central investigating agencies was in charge of the investigation and had complete carriage of the proceedings. In such cases, the question whether the prisoner ought to be given the benefit of remission would rest with the Central government, they said.

The dissenting judges found no hindrance or prohibition in second or subsequent exercise of remission powers, which may be required and called for depending upon exigencies. A prisoner may be on his deathbed, and as such the appropriate government may deem it fit to grant remission so that he may breathe his last in the comfort and company of his relations, they said.

Taking into consideration the case of the three Rajiv Gandhi assassination convicts (Murugan, Santhan and Perarivalan), whose death sentences were commuted by the Supreme Court on the grounds of inordinate delay in considering their mercy petitions by the President, the dissenting judges said: “Each of the convicts having undergone about 23 years of actual imprisonment, there is definitely change in circumstances.”

Therefore, they opined that it is permissible for the appropriate government to exercise the power of remission, even after the exercise of power by the President or Governor under Articles 72 and 161 respectively, while rejecting their mercy petitions or by the Supreme Court under Article 32, while commuting their death sentences to life imprisonments.

As a consequence of this judgment, the Tamil Nadu government cannot release the convicts in the Rajiv Gandhi assassination case using its statutory powers of remission without the concurrence of the Central government. But the State government can certainly use the power under Article 161 to remit their sentences, on the grounds that there has been a change in the situation and that the earlier decision to reject their mercy petitions by the Governor was no longer relevant.

V. Venkatesan

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