Saturday, August 29, 2015

A former Judge reflects on the appointment of Judges

 This book is a collection of lectures, and articles by and interviews with the retired Judge of the Madras High Court, Justice K.Chandru.  This is also the first book to come out of Lexlab, a new publisher of law books from Kerala. 

As the Supreme Court's five-Judge Constitution Bench is likely to deliver its judgment in the NJAC case any time in the next few days, it helps to read this book and refresh our understanding of the issues at stake.  Justice Chandru rightly feels that there has been no real assessment of the mode and method of appointment as well as the calibre of the appointees selected so far. The judiciary had always installed a fence around it so that there can be no systematic study of the competence and the calibre of the appointees, he says. 
Justice Chandru also regrets that a profession which has a monpoly license to practice before court has escaped any kind of public scrutiny. The book carries a rare Foreword written by the late Justice V.R.Krishna Iyer (perhaps his last or one of his last Forewords).  The book, divided into 15 chapters, reveals the mind of Justice Chandru on various contemporary issues concerning the judiciary.  Chapter 12 shows that he favours the NJAC, which he believes, will be free from arbitrariness and favouritism.  The book can be purchased from here.

Sunday, August 23, 2015

Unstable Constitutionalism: Law and Politics in South Asia

Although comparative constitutional law has steadily grown as a field, it still remains narrow in its geographical focus. South Asia, in particular, is an region that has been neglected. In 2013, Sunil Khilnani, Vikram Raghavan, Arun K. Thiruvengadam put together a wonderful collection of essays, Comparative Constitutionalism in South Asia, that helped remedy some of this lack of attention towards the region.

Mark Tushnet and I have tried to continue the conversation with a new edited collection that has just been published by Cambridge University Press: Unstable Constitutionalism: Law and Politics in South Asia. The book argues that the South Asian experience helps us notice the idea of unstable constitutionalism. The essays unpack the idea of constitutional instability; and the forms and sources of instability and the reactions and responses towards it in the region.

The book should hopefully be available in an affordable format in India soon. A small academic event around the book and its themes will take place in New Delhi on January 20, 2016.

Sunday, August 16, 2015

[Day 10 -- Final Day of Arguments] Constitution Bench Reference in Union of India v. Sriharan

(The author of this post was present in court for the last day of arguments on 12.8.2015 but prefers this to be an anonymous post. This post concludes our coverage of the arguments in this case and I do hope that many of you found it useful. A big thank you to Nishant Gokhale for having made this possible. We do hope to bring you opinion pieces on the issues in play once the judgment is delivered.)
 The matter was taken up today (12.8.2015) at 2 p.m., when Mr. Ranjit Kumar, the Solicitor General (SG) continued his arguments in reply to the arguments of the Respondents.
The SG argued that under the proviso to Article 73, the executive powers of the union extended to matters under the concurrent list where the same was expressly provided in the Constitution or in any law made by parliament.
Scope of Powers of State Government Restricted under section 432(2)
The SG argued that section 432(7) CrPC expressly conferred greater powers on the union for matters under sections 432 and 433 CrPC. Section 432(7) defined appropriate government for the purposes of sections 432 and 433 CrPC, as is evident from the opening lines of the sub-section. He drew attention to section 55A IPC which defined appropriate government for the purposes of sections 54 and 55 IPC. He then contended that as per section 2(y) CrPC, words not defined under CrPC would have the same meaning as assigned to them under IPC. Therefore, if the legislature had wanted ‘appropriate government’ defined under 432(7) CrPC to have the same meaning assigned to the term under section 55A IPC, there was no need to explicitly define ‘appropriate government’ under the CrPC. The conclusion he therefore sought to draw, was that the legislature sought to give a more restricted scope to the powers of the state government for the purposes of sections 432 and 433 CrPC. He drew attention to a number of different legislations under which ‘appropriate government’ was defined differently, and in many the scope of powers of the state government were more restricted, including the Contract Labour (Regulation and Abolition) Act, 1970, the Minimum Wages Act, 1948, etc.
Justice UU Lalit put forth the proposition that the meaning of appropriate government, and more specifically the powers of the state government, were no more restricted under section 432(7) CrPC than under section 55A IPC. According to him, the two sections employed two different ways of doing the same thing. While section 55A IPC defined the spheres of both the central government and the state government, section 432(7) CrPC defined the sphere of the central government, and left the residue for the state government. He explained, if there are 10 apples to be divided among two persons, one way of dividing the apples is to say five are to be given to one person and five to the other. Another way of dividing the apples is to say five are to be given to one person, and the remaining to the other. Ultimately, the consequence of both is the same.
Scope of Executive Powers of the State Government restricted under certain provisions of the Constitution
The SG drew attention to Articles 256, 257 and 258 of the Constitution of India and argued that these expressly conferred executive powers on the union even with respect to matters in the concurrent list, and thereby restricted the sphere of powers of the states with respect to these matters. However, Justice UU Lalit put forth the proposition that these Articles did not expressly confer executive powers on the Union, and merely required the states to exercise their executive powers in a manner that did not impede or prejudice the exercise of executive powers of the union. He contrasted these provisions with Article 260, under which there was express conferment of executive power on the union.

India has a more Unitary than Federal Structure
The SG drew upon a list of cases to contend that the Indian State was more unitary than federal in structure. He used this argument to buttress his main point, that it is the union that has primacy in the field of suspension and remission of sentences under the CrPC.
In State of Rajasthan v. Union of India (Supreme Court, 1977) Chief Justice MH Beg had held: “A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.” He further held that the Central Government is “amphibian”, in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and circumstances of a case.
Similarly, in State of Karnataka v. Union of India (Supreme Court, 1977), a case relating to the powers of the Central Government to set up a Commission of Enquiry under the Commission of Enquiry Act, 1952 against the Chief Minister of Karnataka, Chief Justice MH Beg saw no reason to read down the powers of the Central Government to appoint a Commission of Enquiry against a Chief Minister. However, it must be noted that under the Commission of Enquiry Act, 1952 the Central Government is the appropriate government even for matters under List II and List III of the Seventh Schedule of the Constitution of India.
In Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. v. State of Rajasthan (Supreme Court, 2013) the Supreme Court was called upon to decide which was the appropriate government for acquisition of land within a state for the purpose of the railways.  Under section 3(ee) of the Land Acquisition Act, 1894, ‘appropriate Government’ was defined as follows: “in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government.” The SG relied upon the holding in the case that it would be the legislation in question that would determine the scope of executive powers, and not the entries in the different lists. If under the Land Acquisition Act, 1894, the union was given executive powers over a subject in list III, then even as per the proviso to Article 73, the union would have executive powers in relation to that subject matter.  Justice UU Lalit therefore emphasized that the fulcrum of this decision was that for subjects under List III of the seventh schedule to the Constitution of India, the state would have executive powers, unless the executive powers of the state were circumscribed by legislation. The SG agreed, and went on to content that similarly, the union’s executive powers would extend even to the subject matter of the CrPC (entry II list III) where the CrPC so provided.  He went back to his main contention, that under section 432(7) CrPC, the executive powers of the state government were restricted.
Life imprisonment a ‘term’ of imprisonment
One intervener had argued on the previous day that the concept of life without remission was not recognized historically and that life imprisonment ought not to be for more than 20 years. He had argued that it is only if life imprisonment was seen as a fixed term of 20 years would the provisions under the CrPC in relation to set-off under section 428 make sense for persons sentenced to life imprisonment.  The SG sought to rebut this argument, and contended that the sentence of life imprisonment itself was a ‘term’. One cannot say that only a fixed and ascertainable term of sentence qualifies to be a ‘term’. Life imprisonment is a sentence of imprisonment, whose term extends to the entire life of the individual. He stated that it is a settled position of law that graver the crime, longer must be the sentence, and longer is the sentence, the need for set-off and remission only increases because of the reformative aspect of punishment.
He further argued, that if life imprisonment was considered a ‘term’, then if a person was sentenced to life imprisonment without remission for a certain term, this, too would be in consonance with life imprisonment being for a ‘term’.
Justification for the lack of reliance on empirical data
The State of Uttar Pradesh through Mr. Gaurav Bhatia had argued on the previous day that Swamy Shraddhanand’s cases was decided without considering any data and was based on the erroneous assumption that the States released prisoners under life sentence immediately after 14 years and exercised powers arbitrarily. The SG contended that there could not be any data that could be taken into consideration, because a large number of variable factors are involved in each single case, including the gravity of the offence, the attack on the consciousness of society, etc. These factors would differ from case to case, and therefore it was not possible to determine trends through reliance on empirical data.
Supreme Court need not resort to Article 142
During the arguments of the Respondents, the question arose that if the Supreme Court were to sentence persons to life without remission for a certain term, under which provision of the Constitution would the Supreme Court be exercising its jurisdiction? If such a sentence could be imposed under section 302, IPC, then the question was moot. Otherwise, the Supreme Court would have to exercise jurisdiction under Article 142 of the Constitution of India, using its power to do complete justice. The SG endorsed the view that it was permissible to sentence a person to life imprisonment without remission under section 302 IPC, and that therefore, the Supreme Court need not resort to Article 142. Life imprisonment without remission for a term fell within the maxima and minima sentences provided for under section 302 IPC – life imprisonment and the death sentence – and therefore the language of 302 IPC permitted courts to sentence a person to life imprisonment without remission for a certain term (or life imprisonment without remission for the entire life of person).
Ray of Hope
During the course of proceedings in the instant case, an argument had been raised by the Respondents, that the right to life and personal liberty would require that a person sentenced to life imprisonment must retain a ray of hope that he may be set free at some point of time. This ray of hope was also considered to be crucial to bring about the reformation of a prisoner, with reformation being an essential aim of punishment. The SG argued, that the ‘ray of hope’ of a prisoner sentenced to life imprisonment without remission, which could extend to life imprisonment without remission for the whole life of the prisoner, would be retained in two ways. Firstly, a prisoner who fell under the two categories provided for under section 433A was sentenced to life imprisonment even when there was a possibility of sentencing the prisoner to death, or the prisoner’s death sentence was commuted. The very fact that the prisoner was not given the death sentence was itself a ray of hope. The prisoner would be able to live, her life was saved, and nothing is more precious than life. Secondly, the SG argued that the ray of hope of the prisoner was retained due to Articles 72 and 161 of the Constitution of India, and that these powers of the President and Governor were in no way touched by a sentence pronounced by the courts. The SG argued that the Respondents were in fact arguing for a double commutation, and were asking for far greater than a ‘ray of hope’. 
Justification for the Union to approach the Supreme Court
The SG argued, in response to Dr. Yug Mohit Chaudhry, that the union was perfectly justified in coming before the Supreme Court under its writ jurisdiction. He argued that the cause of action arose when the State of Tamil Nadu formulated a proposal to release the prisoners convicted for the Rajiv Gandhi murder case the very next day after the Supreme Court commuted the death sentence of three of these prisoners to life imprisonment subject to remission. The only reason stated by the State of Tamil Nadu in its letter to the Union of India was that they had spent 23 years in prison. In such a short duration, there was no time for Tamil Nadu to have applied its mind to the gravity of crime, number of persons killed, number of persons injured, the terror struck and all other relevant factors that should have been kept in mind. The Bench stated that the matter may be premature, because it was open to the Union to have raised this point in its reply to the letter of the State of Tamil Nadu. However, the SG contended that the proposal itself was wrong and gave the Union a cause of action to approach the Supreme Court.
Concluding Remarks of the SG
The SG concluded his submissions by emphasizing the role of sentencing. He argued that a sentence brings finality to a matter that originates upon the commission of a crime, and is a necessary component in the administration of justice. Whenever a crime is committed, not only the victim, but the whole of society is aggrieved. The persons aggrieved will be satisfied only when the matter reached finality, which is possible only when an adequate sentence is imposed on the perpetrator of crime.
Thereafter, Mr. Dwivedi, counsel for the State of Tamil Nadu sought to submit surrebuttals to the arguments of the SG. However, the Bench decided to conclude the hearing in the matter, and permitted the Respondents, and all States to submit written arguments within a week.

Saturday, August 15, 2015

Call for Submissions - National Law School of India Review, Vol. 28(1)

[The following announcement is posted on behalf of the National Law School of India Review]

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue- Volume 28(1).  The most recent issue of the NLSIR, Vol. 27(1), will feature contributions by Dr. Catherine Seville, Reader, Newnham College, University of Cambridge, Dr. Wayne Courtney, Associate Professor, University of Sydney, and Prof. Afra Afsharipour, Professor of Law, UC Davis School of Law among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Papers may be submitted under the following categories:

1. Long Articles: Between 5000 and 8000 words, inclusive of footnotes. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. It is advisable, though not necessary, to choose a theme that is of contemporary importance. Purely theoretical pieces are also welcome.

2. Essays: Between 3000 and 5000 words, inclusive of footnotes. Essays are far more concise in scope. These papers usually deal with a very specific issue, and argue that the issue must be conceptualized differently. They are more engaging, and make a more easily identifiable, concrete argument.

3. Case Notes and Legislative Comments: Between 1500 and 2500 words, inclusive of footnotes. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about, and comment on implications for the evolution of that branch of law. In case of legislative comment the note must analyze the objective of the legislation and the legal impact the same is expected to have.

Authors are requested to note that pieces engaging with a foreign theme or legal development,  in any of the above categories, should also explain its relevance in the Indian context, whether by virtue of similar laws or otherwise.

Submissions are preferred in Times New Roman font, double-spaced. Main text should be in font size 12 and footnotes in font size 10. All submissions must be in doc.x format. The review uses only footnotes (and not end-notes) as a method of citation. Submissions must conform to the Bluebook (19th edn.) system of citation.

The NLSIR only accepts electronic submissions. All submissions should contain the name of the author, professional information, the title of the manuscript, and contact information. The last date for submissions to Volume 28(1) is November 30, 2015. Submissions may be emailed to under the subject heading '28(1) NLSIR - Submissions'.

[Day 9] Constitution Bench Reference in Union of India v. Sriharan

 (As the arguments in Union of India v. Sriharan head towards conclusion, Nishant Gokhale brings you the arguments presented on 11.8.2015)
 Dr. Yug Mohit Chaudhary continued his arguments today (11.8.2015) on behalf of Respondent No. 2 to Respondent No. 7 who are all but one of the prisoners convicted in the Rajiv Gandhi murder case today.
Continuing his argument from the previous hearing (6.8.2015) that the Union in this writ was seeking to question the judgment of the Supreme Court commuting the death sentences of some of the Respondents to life imprisonment for their entire life, subject to remission. He submitted that except for a review or curative petition, the decree of the Supreme Court itself could not be re-opened through a different case. Even if a judgment of the court was over-ruled as a precedent in a subsequent case, it would not cease to operate in the case in which the decree was made. He placed reliance upon the case of the In Re: Special Reference No. 1 of 2012 which was a Presidential Reference regarding the allocation of natural resources in the context of cellular licenses. He submitted that if in a Presidential Reference, the Supreme Court had held that a previous judgment cannot be unsettled, how could the Union in a proceeding like this be permitted to question the validity of the commutation judgment despite a review petition and curative petition by the Union on this issue having been rejected by the court.
He submitted that as far as the questions in the present reference to the Constitution bench were concerned, the question of meaning of the term “life imprisonment” did not arise in the case of the Respondents. He however submitted that he supported the view that life imprisonment cannot be awarded by the courts beyond the scope of remission. He submitted that the National Human Rights Commission had issued guidelines which itself stated that the maximum period of incarceration in life imprisonment would be 25 years and there could be no case where a person under the sentence of  life imprisonment would be ineligible for remission. He submitted that these guidelines had been accepted by the Union of India in an affidavit filed by them in a different case in 2004 (Balakrishnan’s case) to be “fair and reasonable”. He also thereafter referred to the Model Prison Manual issued by the Bureau of Police Research and Development which provided for premature release and made reference to the NHRC Guidelines. Hence he submitted that the Union of India could not contend that a sentence of life imprisonment without the prospect of remission could be a sentence which could be imposed in law.
In response to the second question of exercise of powers under Art. 161 and Art. 72, he submitted that there was no constitutional or legislative bar on the use of these powers on multiple occasions and the court should not intervene in this regard. He submitted that the other questions were largely premature as the State of Tamil Nadu had consulted the Union of India on the proposal to release the Respondents from jail, and the Union had merely responded by moving the Supreme Court. He submitted that it was possible that if the Union did respond and the State Government was satisfied with this response, the issues of who is the appropriate government would be moot. He stated that the questions relating to the powers of the Governor and President to consider clemency petitions had not arisen so far as no mercy petitions had been moved by the Respondents after their death sentences had been commuted to life imprisonment.  He said that the question of “consultation” and “concurrence” had also not arisen so far as the Union had not stated what it proposed to do in response to the State of Tamil Nadu’s intimation to them. He submitted therefore that this court should not decide the meanings of these terms as they were merely hypothetical questions as far as the present case was concerned.
In concluding his submissions, he made the following suggestions to the Court. (1) He suggested that the overturning of the decision in Swamy Shraddananda’s case would mean that one door for convicts facing the death penalty would be closed. He however conceded that he could not deny that Swamy Shraddananda’s case had clearly encroached upon the powers of the executive. Quoting from Bachan Singh’s case he reiterated the cautionary note in that case that judges should not to be blood thirsty and hanging a person had never done any good to the judges. (2) He implored the court to not put life imprisonments beyond the scope of review and remission by the Government. He further suggested that if the Court was to take the view that it could specify a sentence in cases where life imprisonment was being granted where the eligibility of remission was postponed or taken away, then it should only be the Supreme Court under Art. 142 which should have the power to do it. He submitted that if the Trial Courts across the country were given the power to interpret life imprisonment any way they liked, then there would be mayhem. (3) He further submitted that the Supreme Court could not encroach in any way the powers under Articles 72 and 161 as they are not circumscribed by any statute or within the constitution. He submitted however, that the court could direct that a concept of “just remission” be brought into use. He argued that the Supreme Court in a number of cases such as Rameshbhai Chandubhai Rathore has held that remission could be granted by the Government for good and sufficient reasons. He submitted that the clearest exposition of “just remission” was in Sushil Sharma’s case where the court has laid down (paras 83-84) that the remission granted would be subject to procedural checks under section 432 CrPC and substantive checks under section 433-A of CrPC. (4) He further submitted that in cases where appeals for enhancement of punishment are filed before the Supreme Court, it was necessary that the number of years of the sentence are specified. He submitted that in those kinds of cases, the Supreme Court was the last court the prisoner could approach and no scope for uncertainty should be left. (5) He further submitted that before ruling on the assumption that there was a vacuum between the alternatives of 14 years and death sentence, he urged the court to consider how different states in their respective jail manuals dealt with remission. He submitted that in the State of Maharashtra, there was a provision where for different kinds of murders, the minimum periods of incarceration were prescribed. He stated that these extended upto 60 years in cases where death was caused in gang wars. (6) He submitted that the Court could consider calling for a report of the probation officer to ascertain the conduct of the prisoner in jail to determine whether or not the prisoner’s sentence should be remitted.
He concluded his submissions by arguing that the doctrine of parens patriae was unheard of in litigation and in the Bhopal Gas Leak, it was used as a legislative mechanism. He submitted that it was important that the rule of law be upheld and this case not be treated as an exception. He submitted that this Court should deal with several questions framed by the referring court in an appropriate case and there was no need to deal with them in the present case.
Thereafter Mr. Ram Jethmalani, Senior Advocate argued on behalf of Respondent No. 1 who is also a convict in the Rajiv Gandhi murder case. He contended that since the commutation order itself stated that it should be subject to remission, it was beyond question whether it was permissible and the State Government was the appropriate authority to decide in the present case. He briefly adverted to the case of Kehar Singh which he had argued to contend that it held that the President had power to even give an opinion contrary to the decision of the Supreme Court and consider the evidence in the case afresh. He submitted that the powers of remission under the CrPC and the Constitution are concurrent powers. He submitted that his reading of Article 73 was that where a State Government could also legislate, the Central government would be excluded. He submitted that the conduct of a prisoner in jail was best known to the State Government itself and the Central Government at a distant location would not be in a position to state whether the prisoner was to be eligible for remission. He submitted in response to the first question that it did not arise in the facts of his case. He however submitted that at best the court could give a recommendation to the executive. He further stated that following the dictum in Bachan Singh’s case, death sentence could only be awarded in the “rarest of rare” cases and not merely in cases where a 14 year sentence did not seem adequate. He further submitted that Swamy Shraddhanand’s case was a violation of the doctrine of separation of powers and was based on the assumption that a life sentence was no more than 14 years. He however placed on record charts in the jail manuals in Maharashtra and Haryana to show that life sentences could in some types of cases be considered to be for upto 60 years. He further submitted that the concept of res judicata did not apply to the executive powers and refusal to exercise powers in such a case maintained the status quo and the prisoner remained under the same sentence. He concluded by stating that most of the questions referred did not arise in the facts of his case.
Thereafter, in response to notice issued to all the States, several state governments made submissions to the court. Mostly, they adopted the arguments of Mr. Dwivedi who had appeared for the States of Tamil Nadu and West Bengal. Mr. V Giri, Senior Advocate for the State of Kerala, briefly summarized his submissions following the submissions made by the counsel previously. The State of Uttar Pradesh through Mr. Gaurav Bhatia in addition to taking the court through some of the important paragraphs of the various judgments cited previously to demonstrate that the case of Swamy Shraddhanand was per incuriam Maru Ram and Gopal Godse’s cases, presented statistical data on how powers of remission had been exercised by the State. He also submitted that Swamy Shraddhanand’s cases was decided without considering any data and was based on the erroneous assumption that the States released prisoners under life sentence immediately after 14 years and exercised powers arbitrarily. He submitted that as per the data available with him, only one death sentence had been commuted by the Governor of UP in 1973 and today a total of 607 cases seeking clemency in relation to various sentences were pending before the Governor. He submitted a list of several cases of life imprisonment where prisoners were not released by the State government despite having completed over 20 years of their life sentence to show that release was not instantly done by the state after 14 years. He however informed the court that he would file the complete data as well as data relating to death sentences commuted to life imprisonment in the State of Uttar Pradesh. He further submitted that it was pertinent to note that Parliament’s intention was to leave the power of remission open as even after passing the Criminal Law (Amendment) Act, 2013 which provides for sentences for the rest of ones natural life, the powers of remission under the CrPC remained untouched. He further submitted that Swamy Sharddhanand’s case did not itself lay down guidelines nor did it identify a case where the power of the State Government or Governor had been abused. He submitted that even if a sentence for period between life imprisonment and death were to be awarded by the court, reasons would have to be given as was done in the case of Haru Ghosh.
Thereafter the Court briefly heard some intervenors in the case. One intervenor sought to trace the historical context of life imprisonment from the Indian Penal Code as originally drafted, a treatise by Sir George Rankin titled “The Background to Indian Law” as well as the Government of India Act, 1935 to state that the concept of life without remission was not recognized historically and that life imprisonment ought not to be for more than 20 years. Dr. SP Sharma who represented Swamy Sharddhanand submitted that in view of the judgment in his case, the prisoner was not let out of jail for treatment even on medical grounds. The Bench however stated that once this reference was decided, the appropriate bench would determine the individual cases and refused to entertain interventions.
The Solicitor General thereafter sought to respond to the points made over the last several days by the Respondents. He submitted that a constant refrain of all the States was the prisoner’s rights whereas there was no talk by the state of the society’s interest in punishment as well as the victim’s rights. He submitted that while it was very well to state that in cases of wrongful exercise of remission powers, the option of judicial review was available, it was not known as to who would bring this matter to court. He submitted that the victims who are not consulted in the process of remission would not be aware, and the State Government would not refer it since it was itself granting remission and hence the court would not have any occasion to consider the issue.
He further submitted that in the present case, the State Government had not shown any material to show how it is that the convicts in the Rajiv Gandhi murder case had reformed, shown good conduct or remorse and hence there was no material to state as to why they should be released. In response to the Bench’s comment that this may be a premature contention, he responded that he would answer this query in due course.
He submitted that if section 432 CrPC was to be considered as a parallel or concurrent power, it should have had a non-obstante clause which stated that it was notwithstanding anything contained in any other law or the constitution. Since this was not the wording, he submitted that this could only be a procedural and not a substantive provision. He thereafter referred to section 432(7)(a) to state that the appropriate government under it was the Central Government and section 432(7)(b) which was invoked in “other cases”, the State Government was the appropriate government. He submitted that in a case under section 432(7)(b), the power would be circumscribed by section 435(1) CrPC. In the present case, since the CBI had investigated, section 435(1)(a) would be specifically attracted. He thereafter referred to the provisions of the Delhi Special Police Establishment Act. He submitted that under section 4(2) of the DSPE Act the superintendence would be that of the Central Government and section 2(3)  gave CBI officers the power to act as police officers of that area where notified. He submitted that in this case, the State Government, through a notification of 22nd May 1991 under section 6 of the DSPE Act had itself handed over the investigation in the murder of Rajiv Gandhi into the hands of the CBI. Therefore it would not be open to the State of Tamil Nadu to state that it was not bound by section 435(1)(a) of the CrPC. The bench queried as to whether the CBI’s superintendence by the central government was only limited to matters of investigation. To this the Solicitor General responded stating that section 435(1)(a) covered offences where the investigation was done by the CBI.
The SG thereafter submitted that the provisos to Articles 73 and 162, which delineate the extent of the executive powers of the Union and States respectively, required to be interpreted harmoniously. He further submitted that there was no reference or incorporation of the provisos to articles 73 or 162 in section 432(7)(a) or section 435 and therefore it could not be assumed that the procedure under the CrPC was in any way parallel or concurrent to the constitutional powers. He submitted that there was no power under the CrPC but only procedure and even under section 125 CrPC, an illustration given by the State of UP and the Bench, there was only an interim procedure to claim maintenance, not a substantive right.
The bench said it continue hearing the matter at 2pm on 12.8.2015 (Wednesday) and it is expected that the matter will conclude then.

Tuesday, August 11, 2015

[Day 8] Constitution Bench Reference in Union of India v. Sriharan

(This post by Nishant Gokhale documents the arguments presented on 6.8.2015)

The arguments today (6.8.2015) continued with Mr. Rakesh Dwivedi, Senior Advocate arguing for the State of Tamil Nadu.
The Bench was considering alternatives on how sentencing could be carried out so that as stated in Swamy Shraddananda’s case it was neither too less nor too harsh. Mr Dwivedi submitted that paragraph 91 of Swamy Shraddananda’s case (paragraph 67 of hyperlink) required the Court to consider if a separate category of “sentence” could be awarded in some cases. He submitted that this judgment was in the context of where life imprisonment was being awarded in lieu of the death sentence. He submitted that therefore while creation of a new sentence would be within the legislative domain, it would be open to the court to only award the sentences prescribed by law and that these sentences would necessarily be subject to provisions under the CrPC and Constitution of India. He submitted that any sentence which deprived the convict of the possibility of remission would severely prejudice the convict.
The Bench however questioned as to why this would prejudice the convict as in many cases, the court was giving a sentence lesser than death which was the maximum penalty in law. He submitted that putting the sentence beyond the pale of remission would deprive the prisoners of their right to be considered for remission which presented “a ray of hope” for the prisoner.  To this, the Bench suggested that they could think of passing a sentence where the matter could after a period of about 20 years come back to them to determine whether or not remission should be made applicable.
In exploring further alternatives, the Bench looked at the case of Subhash Chander v. Kishan Lal where the convict who was to be sentenced to death instructed his counsel that he would be willing to accept a sentence of life imprisonment without remission under the CrPC or the jail manual or similar rules. Mr. Dwivedi however submitted that such consent may be given by the prisoner in terrorem, as many people would choose any alternative punishment rather than the death penalty. He implored the court to not put the prisoners in such a position as courts may return to handing out brutal and unusual punishments merely in order to express the judge’s personal anger at the offence. He made reference to the Bloody Assizes where Judge Jeffreys was alleged to have invented punishments which were not known in either common law or statute. Mr. Dwivedi submitted that just as the Court could not direct the executive to grant remission in a particular case, it could not also direct that remission be withheld in a particular case.
The Court however asked Mr. Dwivedi as to why the court should not interfere as they had virtually legislated in the cases of Vishaka as well as the Prakash Singh case. Mr. Dwivedi replied that the court could, as it had previously done lay down guidelines until statutory law was enacted, but submitted that the powers of the court even under Article 142 are to be exercised within a limited sphere. He submitted that the case of Premchand Garg states that while the power under Article 142 is very wide, it cannot be exercised contrary to a fundamental right or contrary to a statute. He submitted that the power of the Supreme Court under Article 142 to do “complete justice” did not give it the power to supplant but merely supplement existing statutes and this power was to be understood as one which would aid the molding of relief in a particular case rather than the power to create law which would apply to all cases.
Mr. Dwivedi thereafter referred to the Criminal Sentences Act, 1997 and the Criminal Justice Act, 2003 in the United Kingdom which lays down sentencing guidelines. The United Kingdom currently permits whole life sentences but after the European Court of Human Rights judgment in Vinter v. UK it is necessary that the sentence is subject to review and the possibility of release is not taken away. He submitted that in the UK, there is possibility of early release and the quantum of the sentence is determined by a variety of factors such as the nature of the offence, circumstances of the convict etc. He submitted that the minimum sentence out of a life term, which is believed to have a punitive impact is called a “tariff” and the remainder of the sentence could serve other penological purposes. He submitted that while it may not be advisable to simply adopt these guidelines, some such guidelines could be laid down. Mr. Dwivedi further submitted that the right to be considered had been recognized by the Supreme Court in several cases. He submitted that the European Court of Human Rights had found life imprisonment without parole to be contrary to human dignity as well as the Namibian Supreme Court.   More on this can be found here.
Mr. Dwivedi thereafter submitted relying on the case of AR Antulay that no prejudice was required to be proved for vitiating any action by the State and it was sufficient to show merely that a fundamental right had been breached. He further submitted that it would be wrong by merely following the observations in Swamy Shradhhananda’s case to make a distinction as it would be violative of Article 14 of the Constitution. He further submitted that as held in the SCBA case, it was not open to the court to invent a new punishment not provided for in law.
He further submitted that the court by having the discretion to fix the terms of a life sentence before which the powers of remission would apply, would also violate Article 20 of the Constitution. He submitted that Article 20 was not only a protection against an ex-post facto law but also a protection against a greater punishment. The Bench however, queried as to whether imposing a punishment of 30 years where life imprisonment was specified would amount to a new punishment. Mr. Dwivedi argued that this would indeed amount to a punishment not sanctioned by law as all persons sentenced to life imprisonment would be entitled to be considered for remission under the CrPC after 14 years have elapsed under section 433-A of the CrPC.
Thereafter, Mr. Dwivedi concluded his arguments by stating that this judgment should have prospective effect so that the courts under it would have the power to consider passing a sentence to alternative to the death sentence.
Thereafter Mr. TR Andhyarujina, Senior Advocate who was representing a prisoner who had been sentenced to life imprisonment without remission under the CrPC, jail manual or any other rules put forth his case against life without remission.  Mr. Andhyarujina submitted that the question his case presented was a mixed question of criminal as well as constitutional law. At the outset, he submitted that the expression “mercy” petition was wrongly used as the power of the Governor and President under the Constitution was a high power, not even bound by the law laid down by the Court and therefore should not be reduced to the petitioner begging for mercy. He submitted that the clemency powers represented an important facet of the separation of powers as the Kehar Singh case had held that the President could hold, while exercising powers under Article 72 that he could make findings even contrary to those reached by the Supreme Court.  When asked by the Bench as to whether his client had applied before the Governor or President for clemency, he submitted that he had not as the prospects of getting any relief there were very less as these authorities usually did not interfere. He submitted that despite the powers of the court as well as the powers of the Governor and President, the legislature in its wisdom had enacted remission, suspension and commutation procedures under the CrPC. He submitted that sections 54 and 55 of the IPC also clearly contemplated that the appropriate Government had the power to commute sentences of death and life imprisonment. Hence, he submitted that there should not be a sentence imposed which foreclosed any of these options. While keeping his submissions brief in light of the fact that a number of cases had already been dealt with by Mr. Dwivedi, he submitted that the Maru Ram judgment was significant because it make a distinction between the actual judgment as well as the reasons for the judgment and this scope was open to review. He submitted that in Godse’s case the judiciary had deferred to the executive by refusing to interfere to grant remission until he became eligible for it. He also pointed to section 32-A of the NDPS Act which restricted the granting of any remission or exercise of clemency. He concluded by stating that handing out the sentence was the termination of the judicial exercise of power, and carrying out the sentence was within the executive’s domain.
Thereafter, Dr. Yug Mohit Chaudhary commenced arguments on behalf of Respondents No. 2 to Respondents No. 7 who are all but one prisoners convicted in the Rajiv Gandhi murder case. He sought to assist the court on the question of whether the court should in this reference, answer it in terms of propositions of law or on the facts of this case. He submitted that while the power under Article 143 (Reference to Supreme Court by President) of the Constitution could be exercised in relation to any question of law which had or may arise, the power under Article 145(3) under which the present reference was made, required the facts to be addressed by the Court. He submitted that he intended to lay before the court some facts which would be relevant for the adjudication of the present case. He submitted that in the present case, all the accused persons were acquitted of TADA, which is a central legislation. He further submitted that while they were convicted under offences under the Explosives Act, Foreigners Act and some other central legislations, the sentences under those legislations were no more than 2 years and had already been served. He submitted that for these offences, there was no question of remission as the sentence had already been undergone. He however submitted that they required the exercise of powers of remission for offence under section 302 of the IPC r/w 120-B of the Indian Penal Code. He submitted that the order of this Court dated 18.2.2014 commuting the death sentence of 3 of the convicts specifically directed that the sentence would be for the rest of their lives, but subject to remission. This was set out in paragraph 31 (of the official judgment). He submitted that against this, the Union of India had filed a Review Petition as well as a Curative Petition, quoting this very paragraph and specifically challenging it. He brought to the attention of this Hon’ble Court’s attention that both these petitions were dismissed. He submitted that the present writ petition also quotes this paragraph and raises it as a ground for challenge. He therefore concluded for today stating that the present petition would amount to nothing but a challenge to a final judgment of the Supreme Court by the Union through a public interest litigation by taking up the cause on behalf of the victims and acting as the parens patriae.
The arguments will resume on 11.8.2015 (Tuesday).

Saturday, August 08, 2015

The Supreme Court of Pakistan Recognizes "Basic Stucture"

13 out of 17 judges of the Supreme Court of Pakistan held that the Supreme Court has intrinsic powers to review the constitutionality of a constitutional amendment. While the "basic structure" doctrine had been argued before the courts since the late 1980s, this is the first time that it has recieved overwhelming judicial recognition. In a 900 page judgement (beating the length of the judgment in Kesavananda Bharti) the majority of judges upheld the constitutionality  of the 18th and 21st amendments to the Pakistan constitution. Upholding the constitutionality of an impugned amendment while asserting their right to review has been a fairly common feature of the initial basic structure cases in India as well. Interestingly, the identified salient features include parliamentary democracy and judicial independence, but omit any reference to Islam

 The 18th amendment had laid down a new procedure of judicial appointmens while the 21st amendment was enacted following the Peshawar school massacre to set up a series of military courts to try cases involving terrorism. 

With this decision, Pakistan joins Bangladesh, Nepal, Sri Lanka and India in recognizing intrinsic limits to amendment powers. Given the history of the Supreme Court of Pakistan, the arrogation of veto powers over the constitution has divided opinion. Some critiques can be found here (Babbar Sattar), here (Ejaz Haider). The judgment itself is available here

Friday, August 07, 2015

[Day 7] Constitution Bench Reference in Union of India v. Sriharan

[Nishant Gokhale continues to document the arguments in this case]
The arguments today (5th August 2015) were continued by the State of Tamil Nadu through Mr. Rakesh Dwivedi, Senior Advocate.
Continuing on the second question referred to the constitution bench, Mr. Dwivedi argued to counter the argument of the Solicitor General that the power of mercy could not be exercised repeatedly. He submitted that the CrPC and the Constitution permitted filing of more than one mercy petition even though it may have previously been filed and decided. He contended that section 433-A itself contemplated a fresh exercise of the power of remission where a sentence of death was commutated to one of life imprisonment. He submitted that Kehar Singh’s case had laid down the law that the exercise of powers under Articles 72 and 161 could not be governed by judicial dicta. He further submitted that in the case of G Krishtha Goud v. State of Andhra Pradesh, it was held that the rejection of one clemency petition does not exhaust the power of the President and Governor. He argued that it would be open to exercise the powers under section 432 and 433 even after the exercise of powers under Article 72 and 161 of the Constitution. He argued that this was a fit case where circumstances had fundamentally changed as the LTTE was considerably weakened and its head who was named as an the main conspirator had been killed.
Responding to the queries of the Bench on whether the practice of filing repeated mercy petitions and also petitions challenging its rejection needed to be checked, Mr. Dwivedi submitted that there appeared to be no material placed by the Union to show that this had caused any problems or delayed the execution of the death sentence. He submitted that in death sentence cases, even if some delay was caused, it should be accommodated as the condemned prisoner was clutching to life. He submitted that in such cases, the benefit of the doubt should go to the prisoner since the death sentence is irreversible. He pointed out that in case of death sentences, the Instructions issued by the Ministry of Home Affairs and several jail manuals only required that an automatic stay of execution only be granted after the first mercy petition had been sent and for all other subsequent petitions, an order of stay would have to be asked for from the courts or the executive. He submitted that if the concern was that the Supreme Court would be overburdened by cases of prisoners who were seeking to delay the date of execution, he said a change could be made in the Supreme Court Rules to limit the number of times petitions challenging decisions rejecting clemency could be filed. He submitted that the States were competent authorities to deal with clemency petitions at their own level by appropriately advising the Governor. He submitted that if the Union was in any way aggrieved, it was always open to them to amend both the CrPC as well as the Constitution as neither currently imposed a bar on the number of petitions which could be filed. When the Bench suggested that they could, in their judgment indicate that they would want to cap the number of times a clemency petition could be filed or challenged, he implored them to not do so as that would be interfering in the legislative domain. He submitted that in the present case, they are not dealing with any cases of death sentence as the prisoners who were sentenced to death have had their sentences commuted to life imprisonment and therefore these observations, if made, would be wholly out of place if made in this case.
Mr. Dwivedi further submitted that it was highly improbable that if the power of remission was left to the State Government, it could be misused by the Governor. He relied on Article 167 of the Constitution which outlines the duties of the Chief Minister and the debates that took place on the Governor’s powers in the Constituent Assembly (Article 147 of Draft Constitution). He submitted that the Governor could not over-rule the Ministers but could only warn, suggest or advise the ministers on the course of action adopted or to be adopted. On a query by the court, however, he conceded that he was not aware of a case where the Governor had exercised the powers under Article 167 (c) of the Constitution to send a decision to grant or withhold remission by a Minister back to the Council of Ministers for reconsideration.
While addressing arguments on question No. 6 referred to the constitution bench, Mr. Dwivedi submitted that it was not necessary for an application under 432(1) to be moved as it uses the term “anytime”. He further submitted that in the case of Mohinder Singh v. State of Punjab no application had been submitted and the State had initiated action suo moto. He submitted that the power under section 432(1) was the procedural portion and was a complete power in itself.
On the issue of the power under section 432(2) he submitted that this power was discretionary and required an application to be filed as stated in the sub-section. He stated that despite the Law Commission’s recommendations on the previous CrPC (where 432(2)corresponds to section 401(2)) the legislature had chosen not to take action to make this a mandatory power. The Law Commission had expressed its view in the 35th Report (paragraph 1085), the 41st Report (paragraph 29.4) as well as the 48th Report (paragraphs 46 & 47). He also submitted that the wording of section 432(2) was problematic as it was unclear as to which court’s opinion would be taken (the sentencing or confirming court), if this opinion would be a judicial or administrative order and what was meant by the term “Presiding Judge” as used in the sub-section. He submitted that in cases under TADA, the Supreme Court was itself the confirming court and it would have to be the Presiding Judge of the Supreme Court (the Chief Justice or the senior judge on the bench which confirmed the sentence) who would have to give an opinion on the issue of sentence. He submitted that the decision of the Full Bench of the Punjab High Court in the case of Hukam Singh v. State of Punjab clearly held that the provisions of 401(2) of the Old CrPC was not a mandatory provision.
Addressing arguments on the first question referred to the constitution bench on the interpretation of life imprisonment, he submitted that the power under section 432 CrPC permitted remission of the whole sentence. He submitted that the term life imprisonment should be interpreted to mean life imprisonment for the natural life of the prisoner subject to the powers of remission under the CrPC and the Constitution of India. He further reiterated that while the prisoner did not have a right to be released, he had a right to be considered for remission. The bench however wondered if this right would trump the right of the victims to get justice. The bench thereafter referred to the queries raised in Swamy Shraddhanand’s case and asked Mr. Dwivedi whether (1) the Court could impose a sentence beyond the power of remission and (2) whether in the absence of a life term which was perceived to be harsher than 14 years, judges would be nudged towards awarding death sentence.
Mr. Dwivedi argued that if courts were empowered to put life sentences beyond the scope of remission, then it would amount to repealing section 432 and 433 of the CrPC. Further, he submitted that across the world, wherever life imprisonment had been imposed for a fixed term, it was through legislation and not through judicial decisions. He submitted that there was no principled distinction which could be drawn between cases where life imprisonment without remission for 30 years was awarded and cases where a fixed period of sentence of 21 years was awarded although the crime seemed more heinous and brutal in the latter case. He highlighted that there would be a danger in courts entering this area as it dealt with sentencing policy and would require courts to venture into the legislative domain. In response to the Bench’s suggestion that they were empowered to pass any sentence in between life imprisonment and death sentence, he responded stating that the option was either life imprisonment or death sentence. The courts could not, of their own, determine how much the quantum of life imprisonment should be. The Bench asked as to why the Court could not ensure that some persons accused of extremely grave offences should ever be released from jail at the time of sentencing itself. To this, he responded that the stage of sentencing was not the time to make that determination as to whether or not they should or should not be released from jail as that was to be seen from the effect that the punishment had on the prisoner as regards reformation. He further submitted that to set a minimum amount of period before which remission could be granted would amount to the judiciary amending section 433-A. He submitted that he had no problem if the legislature carried out the requisite amendments, but it was not the place of the courts to do it.
There was an animated debate between him and the bench as to what would be the appropriate quantum of sentence to which he conceded that perhaps seeking the opinion of the judicial officer under section 432(2) could be made mandatory. However there was disagreement on the issue of what the weight of this opinion would be. Mr. Dwivedi however, submitted that such a provision was not there in commutation of sentences under section 433 CrPC and the only possible recourse would be for the Union to seek instructions to amend the CrPC and Constitution. He submitted that since the Union was purportedly acting on behalf of the victims under the doctrine of parens patriae, it would be shirking its duty by not seeking legislative amendment to the provisions which aggrieve them rather than calling for the Courts to bring changes into what was clearly legislative domain.
The bench rose for the day at this point and will resume again on 6.8.2015.