Union of India Vs. V. Sriharan @ Murugan & Ors.
[Writ Petition (CRL.) No. 48 of 2014]
[Writ Petition (CRL.) No.185/2014]
[Writ Petition (CRL.) No.150/2014]
[Writ Petition (CRL.) No.66/2014]
[Criminal Appeal No.1215/2011]
FAKKIR MOHAMED
IBRAHIM KALIFULLA, J.
The Petitioner has challenged the letter dated 19.02.2014 issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposed 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. As far as respondent Nos. 1 to 3 are concerned, originally they were imposed with the sentence of death.
In the judgment reported as V. Sriharan alias Murugan v. Union of India & Ors. - (2014) 4 SCC 242, the sentence of death was commuted by this Court. Immediately thereafter, the impugned letter came to be issued by the State of Tamil Nadu which gave rise for the filing of the present Writ Petition. While dealing with the said Writ Petition, the learned Judges thought it fit to refer seven questions for consideration by the Constitution Bench in the judgment reported as Union of India v. V. Sriharan @ Murugan & Ors. - 2014 (11) SCC 1 and that is how this Writ Petition has Now been placed before us. In paragraph 52, the questions have been framed for consideration by this Bench.
The said paragraph reads as under: "52.1 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 paras 91 to 93 of Swamy Shraddananda(2), 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?
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?
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?
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?
Whether there can be two Appropriate Governments in a given case under Section 432(7) of the Code?
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?
Whether the term "'Consultation'" stipulated in Section 435(1) of the Code implies "'Concurrence'"?"
It was felt that the questions raised were of utmost critical concern for the whole of the country, as the decision on the questions would determine the procedure for awarding sentence in criminal justice system. When we refer to the questions as mentioned in paragraph 52 and when we heard the learned Solicitor General for the petitioner and the counsel who appeared for the State of Tamil Nadu as well as respondent Nos. 1 to 7, we find that the following issues arise for our consideration:
(a) Maintainability of this Writ Petition under Article 32 of the Constitution by the Union of India.
(b)
(i) Whether imprisonment for life means for the rest of one's life with any right to claim remission?
(ii) Whether as held in Shraddananda case a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission can be imposed?
(c) Whether the Appropriate Government is permitted to grant remission under Sections 432/433 Code of Criminal Procedure after the parallel power was exercised under Article 72 by the President and under Article 161 by the GoverNor of the State or by the Supreme Court under its Constitutional power(s) under Article 32?
(d) Whether Union or the State has primacy for the exercise of power under Section 432(7) over the subject matter enlisted in List III of the Seventh Schedule for grant of remission?
(e) Whether there can be two Appropriate Governments under Section 432(7) of the Code?
(f) Whether the power under Section 432(1) can be exercised suo motu, if yes, whether the procedure prescribed under Section 432(2) is mandatory or Not?
(g) Whether the expression "'Consultation'" stipulated in Section 435(1) of the Code implies ''Concurrence''?
On the question of maintainability of the Writ Petition by the Union of India, according to learned Solicitor General, the same canNot be permitted to be raised in this Reference since the said question was Not raised and considered in the order of Reference reported as Union of India v. V. Sriharan alias Murugan & Ors.(supra), and that when Notice was issued in the Writ Petition to all the States on 09.07.2014 then also this question was Not considered, that the scheme of Code of Criminal Procedure was to protect the interest of victims at the hands of accused which onerous responsibility is cast on the agency of the Central Government, namely, the CBI which took over the investigation on the very next day of the crime and, therefore, the Union of India has every locus to file the writ petition, that since the issue raised in the Writ Petition canNot be worked out by way of suit under Article 131 of the Constitution since the accused are private parties, Writ Petition is the only remedy available, that after the questions of general importance are answered, the individual cases will go before the Regular Benches and, therefore, the Union of India is only concerned about the questions of general importance and lastly if Union of India is held to be the Appropriate Government in a case of this nature, then the State will be denuded of all powers under Sections 432/433 Code of Criminal Procedure and consequently any attempted exercise will fall to the ground.
Mr. Rakesh Dwivedi, learned Senior Counsel who appeared for the State of Tamil Nadu would, however, contend that the Writ Petition does Not reflect any violation of fundamental right for invoking Article 32, that the maintainability question was raised as could be seen from the additional grounds raised by the Union of India in the Writ Petition itself though the question was Not considered in the order of Reference. Mr. Ram Jethmalani, learned Senior Counsel who appeared for the private respondent(s) by referring to Articles 143 and 145(3) read along with the proviso to the said sub-Article submitted that when No question of law was likely to arise, the referral itself need Not have been made and, therefore, there is Nothing to be answered. By referring to each of the sub-paragraphs in paragraph 52 of the Reference order, the learned Senior Counsel submitted that None of them would fall under the category of Constitutional question and, therefore, the Writ Petition was Not maintainable.
The learned Senior Counsel by referring to the correspondence exchanged between the State and the Union of India and the judgment reported as V. Sriharan alias Murugan v. Union of India & Ors. (supra) by which the sentence was commuted by this Court as stated in particular paragraph 32 of the said judgment, contended that in that judgment itself while it was held that commutation was made subject to the procedural checks mentioned in Section 432 and further substantive check in Section 433-A of the Code there is Nothing more to be considered in this Writ Petition.
Having considered the objections raised on the ground of maintainability, having heard the respective counsel on the said question and having regard to the nature of issues which have been referred for consideration by this Constitution Bench, 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. Having thus steered clear of the preliminary objections raised by the respondents on the ground of maintainability even before entering into the discussion on the various questions referred, it will have to be stated that though in the Writ Petition the challenge is to the letter of State of Tamil Nadu dated 19.02.2014, by which, before granting remission of the sentences imposed on the private respondent Nos.1 to 7, the State Government approached the Union of India by way of 'Consultation' as has been stipulated in Section 435(1) of Cr.P.C, the questions which have been referred for the consideration of the Constitution Bench have Nothing to do with the challenge raised in the Writ Petition as against the letter dated 19.02.2014.
Therefore, at this juncture we do Not propose to examine the correctness or validity or the power of the State of Tamil Nadu in having issued the letter dated 19.02.2014. It may be, that depending upon the ultimate answers rendered to the various questions referred for our consideration, we ourselves may deal with the challenge raised as against the letter of the State Government dated 19.02.2014 or may leave it open for consideration by the appropriate Bench which may deal with the Writ Petition on merits. In fact in this context, the submission of Learned Solicitor General that the answers to the various questions referred for consideration by the Constitution Bench may throw light on individual cases which are pending or which may arise in future for being disposed of in tune with the answers that may be rendered needs to be appreciated. Keeping the above factors in mind, precisely the nature of questions culminates as follows: As to whether the imprisonment for life means till the end of convict's life with or without any scope for remission?
(ii) Whether a special category of sentence instead of death for a term exceeding 14 years can be made by putting that category beyond grant of remission?
(iii) Whether the 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? Whether State or the Central Government have the primacy under Section 432(7) of Code of Criminal Procedure? Whether there can be two Appropriate Governments under Section 432(7)? Whether power under Section 432(1) can be exercised suo motu without following the procedure prescribed under section 432(2)?
Whether the expression ''Consultation'' stipulated in 435(1) really means ''Concurrence''?
In order to appreciate the various contentions raised on the above questions by the respective parties and also to arrive at a just conclusion and render an appropriate answer, it is necessary to Note the relevant provisions in the Constitution, the Indian Penal Code and the Code of Criminal Procedure The relevant provisions of the Constitution which require to be Noted are Articles 72, 73, 161, 162, 246(4), 245(2), 249, 250 as well as some of the Entries in List I, II and III of the Seventh Schedule. In the Indian Penal Code the relevant provisions required to be stated are Sections 6, 7, 17, 45, 46, 53, 54, 55, 55A, 57, 65, 222, 392, 457, 458, 370, 376A 376B and 376E. In the Code of Criminal Procedure, the provisions relevant for our purpose are Sections 2(y), 4, 432, 433, 434, 433A and 435.
The said provisions can be Noted as and when we examine those provisions and make an analysis of its application in the context in which we have to deal with those provisions in the case on hand. Keeping in mind the above perception, we proceed to examine the provisions contained in the Constitution. Articles 72, 73, 161 and 162 of the Constitution read as under:
"Article 72.- Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases .-
(1) the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence- In all cases where the punishment or sentence is by a Court Martial ; In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the Executive Power of the Union extends; In all cases where the sentence is a sentence of death. Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the GoverNor of a State under any law for the time being in force."
Article 73. Extent of executive power of the Union Subject to the provisions of this Constitution, the executive power of the Union shall extend-
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall Not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, Notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
Article 161.- Power of GoverNor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases The GoverNor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Article 162.- Extent of executive power of State Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Under Article 72, there is all pervasive power with the President as the Executive Head of the Union as stated under Article 53, to grant pardons, reprieves, respite and remission of punishments apart from the power to suspend, remit or commute the sentence of any person convicted of any offence. Therefore, the substantive part of sub-Article (1), when read, shows the eNormous Constitutional power vested with the President to do away with the conviction imposed on any person of any offence apart from granting the lesser relief of reprieve, respite or remission of punishment.
The power also includes power to suspend, remit or commute the sentence of any person convicted of any offence. Sub-Article (1), therefore, discloses that the power of the President can go to the extent of wiping of the conviction of the person of any offence by granting a pardon apart from the power to remit the punishment or to suspend or commute the sentence. For the present purpose, we do Not find any need to deal with Article 72(1)(a). However, we are very much concerned with Article 72(1)(b) which has to be read along with Article 73 of the Constitution. Reading Article 72(1)(b) in isolation, it prescribes the power of the President for the grant of pardon, reprieve, remission, commutation etc. in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the Executive Power of the Union extends. In this context when we refer to sub-Article (1) (a) of Article 73 which has set out the extent of Executive Power of the Union, it discloses that the said power is controlled only by the proviso contained therein.
Therefore, reading Article 72(1)(b) along with Article 73(1)(a) in respect of a matter in which the absolute power of the President for grant of pardon etc. will remain in the event of express provisions in the Constitution or in any law made by the Parliament specifying the Executive Power of the Centre so prescribed. When we refer to Article 72(1)(c) the power of the President extends to all cases where the sentence is a sentence of death.
When we examine the above all pervasive power vested with the President, a small area is carved out under Article 72(3), wherein, in respect of cases where the sentence is a sentence of death, it is provided that irrespective of such eNormous power vested with the President relating to cases where sentence of death is the punishment, the power to suspend, remit or commute a sentence of death by the GoverNor would still be available under any law for the time being in force which fall within the Executive Power exercisable by the GoverNor of the State. Article 72(1)(c) read along with Article 72(3) is also referable to the proviso to Article 73(1) as well as Articles 161 and 162.
When we read the proviso, while making reference to the availability of the Executive Power of the Union under Article 73(1)(a), we find a restriction imposed in the exercise of such power in any State with reference to a matter with respect to which the Legislature of the State has also power to make laws, save as expressly provided in the Constitution or any law made by the Parliament conferment of Executive Power with the Centre.
Therefore, the exercise of the Executive Power of the union under Article 73(1)(a) would be subject to the provisions of the said saving clause vis-a-vis any State. Therefore, reading Article 72(1)(a) and (3) along with the proviso to Article 73(1)(a) it emerges that wherever the Constitution expressly provides as such or a law is made by the Parliament that empowers all pervasive Executive Power of the Union as provided under Article 73(1)(a), the same could be extended in any State even if the dual power to make laws are available to the States as well. When we come to Article 161 which empowers the GoverNor to grant pardon etc. which is more or less identical to the power vested with the President under Article 72, though Not to the full extent, the said Article empowers the GoverNor of a State to grant pardon, respite, reprieve or remission or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive Power of the State extends.
It will be necessary to keep in mind while reading Article 161, the nature and the extent to which the extended Executive Power of the Union is available under Article 73(1)(a), as controlled under the proviso to the said Article. Before deliberating upon the extent of Executive power which can also be exercised by the State, reference should also be made to Article 162 which prescribes the extent of Executive Power of the State. The Executive Power of the State under the said Article extends to the matters with respect to which the Legislature of the State has power to make laws. The proviso to Article 162 which is more or less identical to the words expressed in the proviso to Article 73(1)(a) when applied would result in a situation where the result of the consequences that would follow by applying the proviso to Article 73(1)(a) would be the resultant position.
Pithily stated under the proviso to Article 73(1)(a) where there is an express provision in the Constitution or any law is made by the Parliament, providing for specific Executive Power with the Centre, then the Executive Power referred to in sub-clause (a) of sub-article (1) of Article 73 would be available to the Union and would also extend in any State to matters with respect to which the Legislature of the State has also powers to make laws. In other words, it can be stated that, in the absence of any such express provision in the Constitution or any law made by the Parliament in that regard, the eNormous Executive Power of the Union stipulated in Article 73(1)(a), would Not be available for the Union to be extended to any State to matters with respect to which the Legislature of the State has also powers to make laws.
To put it differently, in order to enable the Executive Power of the Union to extend to any State with respect to which the Legislature of a State has also got power to make laws, there must be an express provision providing for Executive Power in the Constitution or any law made by the Parliament. Therefore, the said prescription, namely, the saving clause provided in the proviso to Article 73(1)(a) will be of paramount consideration for the Union to exercise its Executive Power while examining the provision providing for the extent of Executive Power of the State as contained in Article 162. Before examining the questions referred for consideration, it will be necessary to make a detailed analysis of the Constitutional and statutory provisions that would be required to be applied.
When we refer to Article 161, that is the power of the GoverNor to grant pardon etc., as well as to suspend, remit etc., the last set of expressions contained in the said Article, namely, "to a matter to which the Executive Power of the State extends", makes it clear that the exercise of such power by the GoverNor of State is restricted to the sentence of any person convicted of any offence against any law relating to a matter to which the Executive Power of the State is extended. In other words, such power of the GoverNor is regulated by the Executive Power of the State as has been stipulated in Article 162.
In turn, we have to analyze the extent, to which the Executive Power of the Union as provided under Article 73(1)(a) regulated by the proviso to the said sub-article (1), which stipulates that the overall Executive Power of the Union is regulated to the extent to which the legislature of State has also got the power to make laws subject, however, to the express provisions in the Constitution or in any law made by Parliament. The proviso to Article 162 only re-emphasizes the said extent of coextensive legislative power of the State to make any laws at par with the Parliament which again will be subject to, as well as, limited by the express provision providing for Executive Power with the Centre in the Constitution or in any law made by Parliament upon the Union or its authorities.
In respect of the punishments or convictions of any offence against any law relating to a matter to which the Executive Power of the State extends, the power of pardon etc. or power to suspend or remit or commute etc., available to the GoverNor of a State under Article 161 would be available as has been stipulated therein. In this respect, when we examine the opening set of expressions in Article 73(1), namely: "subject to the provisions of this Constitution, the Executive Power of the Union extend............."
It will be appropriate to refer to Articles 246(4), 245(2), 249 and 250. Each of the said Articles will show the specific power conferred on the Union in certain extraordinary situations as well as, in respect of areas which remain untouched by any of the States. Such powers referred to in these Articles are de hors the specific power provided under Article 73(1)(a), namely, with respect to matters for which Parliament has power to make laws. In this context, it will also be relevant to analyze the scope of Article 162 which prescribes the extent of Executive Power of the State. Proviso to Article 162 in a way slightly expands the Executive Power of the Union with respect to matters to which the State Legislature as well as the Parliament has power to make laws. In such matters the Executive Power of the State is limited and controlled to the extent to which the power of the Union as well as its authorities are expressly conferred by the Constitution or the laws made by Parliament.
If we apply the above Constitutional prescription of the Executive Power of the Union vis-Ã -vis the Executive Power of the State in the present context with which we are concerned, namely, the power of remission, commutation etc., it is well kNown that the powers relating to those actions are contained, governed and regulated by the provisions under the Criminal Procedure Code, which is the law made by Parliament covered by Entry 1 in List III (viz.), Concurrent List of the Seventh Schedule of the Constitution. What is prescribed in the proviso to Article 73(1)(a) is in relation to "matters with respect to which the legislature of the State has also power to make laws"
(Emphasis supplied).
In other words, having regard to the fact that 'criminal law is one of the items prescribed in List III, under Article 246(2), the State Legislature has also got power to make laws in that subject. It is also to be borne in mind that The Indian Penal Code and The Code of Criminal Procedure are the laws made by the Parliament. Therefore, the resultant position would be that, 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.
On an analysis of the above-referred Constitutional provisions, namely, 72, 73, 161 and 162 what emerges is: The President is vested with the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the Executive Power of the Union extends as has been provided under Article 73(1)(a) subject, however, to the stipulations contained in the proviso therein. Insofar as cases where the sentence is sentence of death such power to suspend, remit or commute the sentence provided under Article 72(1) would be available even to the GoverNor of a State wherever such sentence of death came to be made under any law for the time being in force.
The Executive Power of the Union as provided under Article 73(1)(a) will also extend to a State if such Executive Power is expressly provided in the Constitution or in any law made by the Parliament even with respect to matters with respect to which the Legislature of a State has also got the power to make laws. The power of the GoverNor of any State to grant pardon etc., or to suspend, remit or commute sentence etc., would be available in respect of sentence of any person convicted of any offence against any law relating to a matter to which the Executive Power of the State extends and Not beyond.
The extent of Executive Power of the State which extend to all matters with respect to which the legislature of the State has power to make laws is, however, subject to and limited by the Executive Power expressly conferred under the Constitution or by any law made by Parliament upon the Union or the authorities of the Union. Keeping the above legal principles that emerge from a reading of Articles 72, 73, 161 and 162, further analysis will have to be made as to the extent to which any such restrictions have been made providing for exclusive power of the Union or co-extensive power of the State under the Constitution as well as the laws made by the Parliament with reference to which the Legislature of the State has also got the power to make laws.
The express provision contained in the Constitution prescribing the Executive Power of the Union as well as on its authorities can be found in Article 53. However, the nature of power stated therein has Nothing to do with the one referred to either in Article 73 (1)(a) or 162 of the Constitution. Under Articles 53 and 156 of the Constitution, the Executive Power of the Union and the State are to be exercised in the name of the President and the GoverNor of the State respectively.
Though, under Articles 123, 213 and 239B of the Constitution, the power to issue Ordinance is vested with the President, the GoverNor and the Administrator of the Union, the State and the Union Territory of Puducherry respectively by way of an executive action, this Court has clarified that the exercise of such power would be on par with the Legislative action and Not by way of an administrative action. Reference can be had to the decisions reported as K. Nagaraj and others v. State of Andhra Pradesh and aNother - 1985(1) SCC 523 @ 548 paragraph 31 and T. Venkata Reddy and others v. State of Andhra Pradesh - 1985(3) SCC 198 paragraph 14. Under Article 246(2) of the Constitution,
Parliament and the State have equal power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule. Under Article 246(4), the Parliament is vested with the power to make laws for any part of the territory of India which is Not part of any State. Article 247 of the Constitution is referable to Entry 11A of List III of Seventh Schedule.
The said Entry is for administration of justice, Constitution and organization of all Courts, except the Supreme Court and the High Courts. Under Article 247, Parliament is empowered to provide for establishment of certain additional Courts. Whereas under Articles 233, 234 and 237 falling under Chapter VI of the Constitution appointment of District Judges, recruitment of persons other than District Judges, their service conditions and application of the provisions under the said Chapter are all by the GoverNor of the State as its Executive Head subject, however in 'Consultation' with the High Court exercising jurisdiction in relation to such State.
Here and Now it can be Noted that having regard to the specific provisions contained in Article 247 of the Constitution, the Central Government may enact a law providing for establishment of additional Courts but unless the Executive Power of the Union to the specific extent is expressly provided in the said Article or in the Statute if any, enacted for making the appointments then the saving clause under the proviso to Article 73(1) (a) will have No application. Under Articles 249 and 250 of the Constitution, Parliament is empowered to legislate with respect to a matter in the State List in the National Interest and if a Proclamation of Emergency is in operation.
Therefore, in exercise of said superscriptive power any law is made, it must be stated that exercise of any action by way of executive action would again be covered by the proviso to Article 73(1)(a) of the Constitution. Similarly, under Article 251 of the Constitution where any inconsistency between the laws made by Parliament under Articles 249 and 250 and the laws made by State Legislature, the laws made by the Parliament whether made before or after the laws made by the State would to the extent of repugnancy prevail so long as the law made by the Parliament continues to have effect. Under Article 252 of the Constitution, de hors the powers prescribed under Articles 249 and 250, with the express resolution of two or more of State Legislatures, the Parliament is empowered to make laws applicable to such States. Further any such laws made can also be adopted by such other States whose Legislature passes necessary resolution to the said effect.
Here again in the event of such situations governed by Articles 251 and 252 of Constitution emerge, the saving clause prescribed in the proviso to Article 73(1)(a) will have application. Irrespective of special situations under which the laws made by the Parliament would prevail over any State to the extent of repugnancy, as stipulated in Articles 249, 250 and 251 of the Constitution, Article 254 provides for supervening power of the laws made by the Parliament by virtue of its competence, in respect of Entries found in the Concurrent List if any repugnancy conflicting with the such laws of Parliament by any of the laws of the State is found, to that extent such laws of the State would become iNoperative and the laws of the Parliament would prevail, subject, however, to stipulations contained in sub-Article (2) of Article 254 and the proviso.
Article 256 of the Constitution is yet aNother superscriptus (Latin) Executive Power of the Union obligating the Executive Power of the State to be subordinate to such power. Under the head Administrative relations falling under Chapter II of Part XI of the Constitution, Articles 256, 257, 258 and 258A are placed. Article 257(1) prescribes the Executive Power of the State to ensure that it does Not impede or prejudice the exercise of the Executive Power of the Union apart from the authority to give such directions to State as may appear to the Government of India to be necessary for that purpose. Under Article 258, the Executive Head of the Union, namely, the President is empowered to confer the Executive Power of the Union on the States in certain cases.
A converse provision is contained in Article 258A of the Constitution by which, the Executive Head of the State, namely, the GoverNor can entrust the Executive Power of the State with the Centre. Here again, we find that all these Articles are closely referable to the saving clause provided under the proviso to Article 73(1)(a) of the Constitution. The saving clause contained in Article 277 of the Constitution is yet aNother provision, whereunder, the authority of the Union in relation to levy of taxes can be allowed to be continued to be levied by the States and the local bodies, having regard to such levies being in vogue prior to the commencement of the Constitution.
However, the Union is empowered to assert its authority by making a specific law to that effect by the Parliament under the very same Article. Under the head 'Miscellaneous Financial Provisions' the Union or the State can make any grant for any public purpose, Notwithstanding that the purpose is Not one with respect to which Parliament or the Legislative of the State, as the case may be, can make laws. Article 285 of the Constitution is yet aNother provision where the power of the Union to get its properties lying in a State to be exempted from payment of any tax. Similarly, under Article 286 restrictions on the State as to imposition of tax on the sale or purchase of goods outside the State is prescribed, which can be ascribed by a law of the Parliament.
Article 289 prescribes the extent of the executive and legislative power of the Union and the Parliament in relation to exemption of property and income of a State from Union taxation. The Executive Power of the Union and of each State as regards carrying on of any trade or business as to the acquisition, holding and disposal of property and the making of contracts for any purpose is prescribed under Article 298. The above Articles 277, 282, 285, 286 and 289 fall under Part XII, Chapter I and Article 298 under Chapter III. Articles 302, 303, 304 and 307 falling under Part XIII of the Constitution read along with Entry 42 of List I, Entry 26 of List II and Entry 33 of List III provides the relative and corresponding executive and legislative power of the Union and the States with reference to Trade, Commerce and intercourse within the territory of India.
Articles 352 and 353 of the Constitution falling under Part XVIII of the Constitution prescribe the power of the President to declare Proclamation of Emergency under certain contingencies and the effect of proclamation of emergency. Under Article 355 of the Constitution, the duty has been cast on the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Article 369 of the Constitution falling under Part XXI empowers the Parliament to make laws with respect to certain matters in the State Lists for a limited period of five years and to cease after the said period by way of temporary and transitional measure. Thus 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.
At the risk of repetition we can even quote some of such provisions in the Constitution which by themselves expressly provide for such supreme control, as well as, some other provisions which enable the Parliament to prescribe such provisions by way of an enactment as and when it warrants. For instance, under Article 247 of the Constitution, by virtue of Entry 11A of List III of the Seventh Schedule, the Parliament is empowered to provide for establishment of certain additional Courts at times of need. In fact, it can be validly stated that the establishment of Fast Track Courts in the various States and appointment of ad hoc Judges at the level of Entry level District Judges though Not in the cadre strength, came to be made taking into account the eNormous number of undertrial prisoners facing Sessions cases of grievous offences in different States.
This is one such provision which expressly provided for remedying the situation in the Constitution itself specifically covered by the proviso to Article 73(1)(a) and the proviso to Article 162 of the Constitution. Similar such provisions in the Constitution containing express powers can be Noted in Articles 256, 257, 258, 285 and 286 of the Constitution. We can quote any number such Articles specifically and expressly providing for higher Executive Power of the Union governed by Article 73(1)(a) of the Constitution. Quite apart, we can also cite some of the Articles under which the Parliament is enabled to promulgate laws which can specifically provide for specific Executive Power vesting with the Union to be exercisable in supersession of the Executive Power of the State.
Such provisions are contained in Articles 246(2), 249, 250, 277, 286 and 369 of the Constitution. 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. In the Indian Penal Code, the provisions for our purpose can be segregated into two categories, namely, those by which various terms occurring in the Penal Code are defined or explained and those which specifically provide for particular nature of punishments that can be imposed for the nature of offence involved.
Sections 17, 45, 46, 53, 54, 55, 55A are some of the provisions by which the expressions occurring in the other provisions of the Code are defined or explained. Under Section 17, the word 'Government' would mean the 'Central Government' or the 'State Government'. Under Section 45, the expression 'life' would deNote the life of a human being, unless the contrary appears from the context. Similarly, the expression 'death' would mean death of a human being unless the contrary appears from the context. Section 53 prescribes five kinds of punishments that can be imposed for different offences provided for in the Penal Code which ranges from the imposition of 'fine' to the capital punishment of 'death'. Section 54 empowers the Appropriate Government to commute the punishment of death imposed on an offender for any other punishment even without the consent of the offender.
Similar such power in the case of life imprisonment is prescribed under Section 55 to be exercised by the Appropriate Government, but in any case for a term Not exceeding fourteen years. Section 55A defines the term "Appropriate Government" with particular reference to Sections 54 and 55 of the Penal Code . Having thus Noted those provisions which highlight the various expressions used in the Penal Code to be understood while dealing with the nature of offences committed and the punishments to be imposed, the other provisions which specify the extent of punishment to be imposed are also required to be Noted. For many of the offences, the prescribed punishments have been specified to be imposed upto a certain limit, namely, number of years or fine or with both.
There are certain offences for which it is specifically provided that such punishment of imprisonment to be either life or a specific term, namely, seven years or ten years or fourteen years and so on. To quote a few, under Section 370(5), (6) and (7) for the offence of trafficking in person, such punishments shall Not be less than fourteen years, imprisonment for life to mean imprisonment for the remainder of that person's natural life apart from fine. Similar such punishments are provided under Sections 376(2), 376A, 376D and 376E. At this juncture, without going into much detail, we only wish to Note that the Penal Code prescribes five different punishments starting from fine to the imposition of capital punishment of Death depending upon the nature of offence committed.
As far as the punishment of life imprisonment and death is concerned, it is specifically explained that it would mean the life of a human being or the death of a human being, with a rider, unless the contrary appears from the context, which means something written or spoken that immediately precede or follow or that the circumstances relevant to something under consideration to be seen in the context. For instance, when we refer to the punishment provided for the offence under Section 376A or 376D while prescribing life imprisonment as the maximum punishment that can be imposed, it is specifically stipulated that such life imprisonment would mean for the remainder of that person's natural life.
We also wish to Note that under Sections 54 and 55 of the Penal Code , the power of the Appropriate Government to commute the Death sentence and life sentence is provided which exercise of power is more elaborately specified in the Code of Criminal Procedure. While dealing with the provisions of Criminal Procedure Code on this aspect we will make reference to such of those provisions in the Penal Code which are required to be Noted and considered. In this context, it is also relevant to Note the provisions in the Penal Code wherein the punishment of death is provided apart from other punishments.
Such provisions are Sections 120B(1), 121, 132, 194, 195A, 302, 305, 307, 376A, 376E, 396 and 364A. The said provisions are required to be read along with Sections 366 to 371 and 392 of Code of Criminal Procedure .
We will make a detailed reference to the above provisions of Penal Code and Code of Criminal Procedure while considering the second part of the first question referred for our consideration. When we come to the provisions of Criminal Procedure Code, for our present purpose, we may refer to Sections 2(y), 432, 433, 433A, 434 and 435. Section 2(y) of the Code specifies that words and expressions used in the Code and Not defined but defined in the Indian Penal Code (45 of 1860) will have the same meaning respectively assigned to them in that Code. Section 432 prescribes the power of the Appropriate Government to suspend or remit sentences.
Section 432 (7) defines the expression 'Appropriate Government' for the purpose of Sections 432 and 433. Section 433 enumerates the power of the Appropriate Government for commutation of sentences, namely, fine, simple imprisonment, rigorous imprisonment, life imprisonment as well as the punishment of death. Section 433A which came to be inserted by Act 45 of 1978 w.e.f. 18.12.1978, imposes a restriction on the power of Appropriate Government for remissions or suspensions or commutation of punishments provided under Sections 432 and 433 by specifying that exercise of such power in relation to the punishment of death or life imprisonment to ensure at least fourteen years of imprisonment. Under Section 434 in regard to sentences of death, concurrent powers of Central Government are prescribed which is provided for in Sections 432 and 433 upon the State Government. Section 435 of the Code imposes a restriction upon the State Government to consult the Central Government while exercising its powers under Sections 432 and 433 of the Code under certain contingencies.
In the case on hand, we are also obliged to refer to the provisions of the Delhi Special Police Establishment Act of 1946 (hereinafter referred to as the "Special Act") as the Reference which arose from the Writ Petition was dealt with under the said Act. The Special Act came to be enacted to make provision for the Constitution of special force in Delhi for the investigation of certain offences in the Union Territory. Under Section 3 of the Special Act, the Central Government can, by Notification in the official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Under Section 4, the superintendence of the Delhi Special Police Establishment vests with the Central Government.
Section 5 of the Special Act, however, empowers the Central Government to extend the application of the said Act to any area of any State other than Union Territories, the powers and jurisdiction of the members of the Special Police Establishment for the investigation of any offences or classes of offences specified in a Notification under Section 3. However, such empowerment on the Central Government is always subject to the consent of the concerned State Government over whose area the Special Police Establishment can be allowed to operate.
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, Department of Personal and Training dated 22.05.1991 forwarding the order of Government of Tamil Nadu, conveying its consent under Section 6 of the Special Act for the extension of the powers and jurisdiction of members of Special Police Establishment to investigate the case in Crime No.329/91 under Sections 302, 307, 326 IPC and under Sections 3 and 5 of The Indian Explosive Substances Act, 1908 registered in Sriperumbudur P.S., Changai Anna (West) District, Tamil Nadu relating to the death of Late Rajiv Gandhi, former Prime Minister of India on 21.05.1991.
Pursuant to the said communication and order of State of Tamil Nadu dated 22.05.1991, the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training issued the Notification dated 23rd May, 1991 extending the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Tamil Nadu for investigation of the offences registered in Crime No.329/91 in Sriperumbudur Police Station of Changai Anna (West) District of Tamil Nadu. Relevant part of the said Notification reads as under:-
"a) Offences punishable under Section 302, 307, 326 of the Indian Penal Code, 1860 (Act No.45 of 1860) and under Section 5 and 6 of the Indian Explosive Substances Act 1908 (Act No.6 of 1903) relating to case in Crime No.329/91 registered in Sriperumbudur Police Station Changai-Anna (West) District, Tamil Nadu;
b) Attempts, abetments and conspiracies in relation to or in connection with the offences mentioned above and any other offence or offences committed in the course of the same transaction arising out of the same facts."
Having thus Noted the relevant provisions in the Constitution, the Penal Code, Code of Criminal Procedure and the Special Act, we wish to deal with the question referred for our consideration in seriatim. The first question framed for the consideration of the Constitution Bench reads as under: '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'.
This question contains two parts. The first part poses a question as to whether life imprisonment as a punishment provided for under Section 53 of the Penal Code and as defined under Section 45 of the said Code means imprisonment for the rest of one's life or a convict has a right to claim remission. The second part is based on the ruling of Swamy Shraddananda (2) alias Murali MaNohar Mishra v. State of Karnataka reported in (2008) 13 SCC 767. Before answering the first part of this question, it will be worthwhile to refer to at least two earlier Constitution Bench decisions which cover this very question. The first one is reported as Gopal Vinayak Godse v. The State of Maharashtra and others - (1961) 3 SCR 440. The first question that was considered in that decision was: "whether, under the relevant statutory provisions, an accused who was sentenced to transportation for life could legally be imprisoned in one of the jails in India; and if so what was the term for which he could be so imprisoned". We are concerned with the second part of the said question, namely, as to what was the term for which a life convict could be imprisoned. This Court answered the said question in the following words:
"A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life". The learned Judges also took Note of the various punishments provided for in Section 53 of the Penal Code before rendering the said answer. However, we do Not find any reference to Section 45 of the Penal Code which defines 'life' to deNote the life of a human being unless the contrary appears from the context. Having Noted the ratio of the above said decision in this question, we can also profitably refer to a subsequent Constitution Bench decision reported as Maru Ram etc., etc. v. Union of India and aNother - 1981 (1) SCR 1196. At pages 1222-1223, this Court while endorsing the earlier ratio laid down in Godse (supra) held as under:
"A possible confusion creeps into this discussion by equating life imprisonment with 20 years imprisonment. Reliance is placed for this purpose on Section 55 IPC and on definitions in various Remission Schemes. All that we need say, as clearly pointed out in Godse, is that these equivalents are meant for the limited objective of computation to help the State exercise its wide powers of total remissions. Even if the remissions earned have totaled upto 20 years, still the State Government may or may Not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoners canNot claim his liberty.
The reason is that life sentence is Nothing less than life- long imprisonment. Moreover, the penalty then and Now is the same - life term. And remission vests No right to release when the sentence is life imprisonment. No greater punishment is inflicted by Section 433A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realize the truism that a life sentence is a sentence for a whole life. See Sambha Ji Krishan Ji. v. State of Maharashtra, AIR 1974 SC 147 and State of Madhya Pradesh v. Ratan Singh & Ors. [1976] Supp. SCR 552"
(Emphasis added)
Again at page 1248 it is held as under: "We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government". In an earlier decision of this Court reported as Sambha Ji Krishan Ji v. State of Maharashtra - AIR 1974 SC 147, in paragraph 4 it is held as under:
"4..........As regards the third contention, the legal position is that a person sentenced to transportation for life may be detained in prison for life. Accordingly, this Court canNot interfere on the mere ground that if the period of remission claimed by him is taken into account, he is entitled to be released. It is for the Government to decide whether he should be given any remissions and whether he should be released earlier." Again in aNother judgment reported as State of Madhya Pradesh v. Ratan Singh and others - (1976) 3 SCC 470, it was held as under in paragraph 9:
"9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following proposition emerge: that a sentence of imprisonment for life does Not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act canNot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the Appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure ;"
(Emphasis added)
It will have to be stated that Section 401 referred to therein is the corresponding present Section 432. We also wish to make reference to the statement of law made by the Constitution Bench in Maru Ram (supra) at pages 1221 and 1222. At page 1221, it was held: "Here, again, if the sentence is to run until life lasts, remissions, quantified in time canNot reach a point of zero. This is the ratio of Godse." In the decision reported as Ranjit Singh alias Roda v. Union Territory of Chandigarh - (1984) 1 SCC 31 while commuting the death to life imprisonment, it was held that: "the two life sentences should run consecutively, to ensure that even if any remission is granted for the first life sentence, the second one can commence thereafter".
It is quite apparent that this Court by stating as above has affirmed the legal position that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Code of Criminal Procedure by the Appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz., the President or the GoverNor of the State, respectively. In the decision reported as Ashok Kumar alias Golu v. Union of India and others - (1991) 3 SCC 498, it was specifically ruled that the decision in Bhagirath (supra) does Not run counter to Godse (supra) and Maru Ram (supra), paragraph 15 is relevant for our purpose, which reads as under:
"15. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do Not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433-A of the Code, or Constitutional power has been exercised under Article 72/161 of the Constitution.
In Bhagirath case the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of Section 428 of the Code which, inter alia, provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of imprisonment ultimately awarded to him. Referring to Section 57, IPC , the Constitution Bench reiterated the legal position as under:
"The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms of punishment. We canNot press that provision into service for a wider purpose." These observations are consistent with the ratio laid down in Godse and Maru Ram cases. Coming next to the question of set off under Section 428 of the Code, this Court held: "The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or Section 433 of the Code.
In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life." We fail to see any departure from the ratio of Godse case; on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the court while allowing the appeal/writ petition. The court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433-A and, 'provided that orders have been passed by the appropriate authority under Section 433 of the Code of Criminal Procedure '.
These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the Appropriate Government has chosen to pass an order under Sections 432/433 of the Code. The ratio of Bhagirath case, therefore, does Not run counter to the ratio of this Court in the case of Godse or Maru Ram."
(underlining is ours)
In Subash Chander v. Krishan Lal and others - (2001) 4 SCC 458, this Court followed Godse (supra) and Ratan Singh (supra) and held that a sentence for life means a sentence for entire life of the prisoner unless the Appropriate Government chooses to exercise its discretion to remit either the whole or part of the sentence under Section 401 of Code of Criminal Procedure . Paragraphs 20 and 21 can be usefully referred to which read as under:
"20. Section 57 of the Indian Penal Code provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. It does Not say that the transportation for life shall be deemed to be for 20 years.
The position at law is that unless the life imprisonment is commuted or remitted by appropriate authority under the relevant provisions of law applicable in
