Missing the bigger picture

Rajiv Verdict: The judgment may have far reaching consequences on criminal jurisprudence in India

Missing the bigger picture
The recent judgment on remission of life convicts in the Rajiv Gandhi assassination case has triggered a debate on several topics. They relate to the very decentralisation relating to powers of the states in granting remission, the need to give primacy to the Centre in granting remission if the case is investigated by a Central agency, the rights of the prisoner etc. In one stroke, the ruling - which sets the benchmark - has truncated the powers of the states.

On December 2, a Constitution bench of the Supreme Court, through a 3:2 majority, in Union of India vs V Sriharan, answered a reference of substantial purport concerning remission of prison sentences. The immediate consequence of the ruling will certainly scupper the Tamil Nadu government’s proposal to remit the life sentences of seven persons found guilty of having conspired and murdered former prime minister Rajiv Gandhi. Far more damagingly though, the majority’s judgment, rendered by Justice F M Ibrahim Kalifulla, will also likely prove deeply detrimental to Indian federalism.

 As we all know, India is a self-avowed Union of States. The Constitution envisages a structure that guarantees equal status to both the Central and state governments, with each of them considered sovereign within their respective domains of operation. In most instances, these spheres are clearly enunciated. The power to remit sentences is a subject over which both the Central and the state governments enjoy near identical authority. The President, acting through his/her council of ministers, has the explicit power, under Article 72, to remit sentences of any person convicted of any offence under any law to which the executive power of the Union extends. In a similar vein, Article 161 accords to the governors of the states the ability to remit sentences in cases to which the executive power of the state extends.

 The key question, therefore, every time either the Central or one of the state governments exercises this power to remit sentences, concerns the extent of executive powers vested in the authority. The answer invariably lies in a joint reading of Articles 73 and 162. The former endows in the Centre the executive control over all matters with respect to which Parliament has power to make laws, with one small proviso: That in matters where the state governments also have power to make laws, the Central government shall enjoy executive authority only when the Constitution or a law made by Parliament expressly authorises the Union to act as the executive command. Article 162 bestows on the state governments a similar power over all matters with respect to which the Legislature of the state has the authority to make laws, unless otherwise provided in the Constitution or in a law made by Parliament.

 At first blush, these provisions appear to present a complicated picture. But read collectively, their meaning is rather clear. They impose a rule that the state government shall enjoy executive power over all subjects enumerated in Lists II and III of the Constitution’s Seventh Schedule, except if the Constitution itself or a Parliamentary law mandates otherwise. This general dictum is further clear from Dr B R Ambedkar’s exposition in the Constituent Assembly: “Ordinarily, the executive authority so far as the Concurrent List is concerned will rest with the units, the Provinces as well as the States,” he said, of what is today Article 73. “It is only in exceptional cases that the Centre may prescribe that the execution of a Concurrent law shall be with the centre.”

 The principles that help determine which among the Central and state governments constitute the appropriate authority for granting remissions also find mention in the Indian Penal Code and the Code of Criminal Procedure (CrPC), 1973. The diktats of these laws are similar to what the Constitution mandates. The only significant exception is Section 435 of CrPC, which requires, among other things, a state government seeking to remit sentences for an offence investigated under the Delhi Special Police Establishment Act, 1946, to compulsorily consult the Central government before making a final order of remission.

Non-binding opinion

In the present instance, soon after the case was registered on the night of Rajiv Gandhi’s assassination, the Tamil Nadu government issued a notification endowing the Delhi Special Police complete powers over the investigation of the offences. Convictions were initially brought under both the Terrorist and Disruptive Activities (Prevention) Act (Tada), 1987, and the Indian Penal Code (IPC), among other laws. However, after the Supreme Court heard various appeals, the convictions under the Tada were reversed, while convictions under the IPC for the offence of conspiring and committing murder was confirmed on seven persons, with four of them being sentenced to death and the others to life in prison. One of the four sentenced to death was granted mercy by the Governor of Tamil Nadu in 2000, while the other three had their sentences commuted by the Supreme Court in 2014.

 Soon after the Supreme Court’s verdict, the Tamil Nadu government sought to remit the sentences of all the seven convicts, each of who had been incarcerated for 23 years. As the Delhi Special Police had investigated their offences, Tamil Nadu sought the Central government’s views on the proposal, a view, which the state saw as merely a non-binding opinion. The Union promptly approached the court, which ultimately culminated in a reference to a Constitution bench.

The answer to the reference ought to have been simple enough. The offence of murder under Section 302 of the IPC relates to the maintenance of “public order,” an entry comprised in List II of the Seventh Schedule, over which, as the reading of Articles 73 and 162 show us, the state government alone enjoys executive power. Therefore, the state government was most certainly the appropriate authority to decide on the grant of a remission. Unfortunately, the majority misinterprets Articles 73 and 162 to effectively hold that the Union’s executive power extends to every offence under the IPC, which is a Central enactment.

 As Justice U U Lalit observes in his pithily written dissenting judgment, to apply Article 73, it is immaterial whether there is a Union law holding the field. What’s relevant is only whether Parliament also enjoys executive authority over the subject. In the absence of any explicit provision in the Constitution or any other Central enactment, the general rule is that for offences of murder under the IPC, the state government alone is the appropriate authority to order remissions. The majority’s opinion, and in this case, Justice Lalit’s dissent, too, makes the additional error of interpreting the word “consultation” in Section 435 of the CrPC to mean “concurrence.” As a result, even in those limited cases where the state is the appropriate government, if the Delhi Special Police has been involved in investigating an offence, the Central government now enjoys primacy in determining whether a sentence can be remitted.

 Collectively, these findings in Sriharan render ineffectual all reasonable authority that the states enjoyed in determining the remission and commutation of those committed to imprisonment within a particular government’s domain. In doing so, the majority’s judgment destroys the federal balance of the Constitution, a feature that is integral to the basic structure.

(The writer is an advocate with the Madaras High Court)

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