TARA SFNGH & ORS.versusUNION OF INDIA & ORS.

                             [2016] 3 S.C.R. 278



A                         TARA SfNGH & ORS.
                                     v.
                        UNION OF INDIA & ORS.
                    (WritPetition(Crl.)No. 190of2014)
B                              JUNE 29, 2016
           [DIPAK MISRA AND SHIVA KIRTI SINGH, J.J.]
          Constitution of India -Arts. 32, 72 and 161 - Power of Supreme
    Court to grant remission u/Art. 32 - On facts, conviction ofpetitioner
    under NDPS Act and sentenced to rigorous imprisonment for more
c   than JO years and fine of Rs. 1 lakh - Petitioners seeking issuance
    of writ of mandamus to authorities to grant remission - Held:
    Constitutional power to grant remission u/Arts. 72 and 161 is quite
    different than the statutory power of remission uls. 433A A CrPC -
    Petitioners do not have a right to seek remission under the Code
D   because of s. 32A of the NDPS Act - Relief could always be sought
    either u/Art. 71 or 161, as the case may be, as it is in a different
    domain - Further, it cannot be said that when a pardon or remission
    can be given u/Art. 72 or 161 by the constitutional authority, this
    Court can exercise the similar power u/Art. 32 - Invocation of Art.
    32 can be only when there is violation of any fundamental right or
E
    where the Court takes up certain grievance falling in the realm of
    public interest litigation - Narcotic Drugs and Psychotropic
    Substances Act, 1985 - ss. 21, 32A - New Punjab Jail Manual,
    1996 - Chapter XIX
         Dismissing the writ petition, the Court
F
         HELD: 1.1 The petitioners have invoked the power of the
    Supreme Court to grant the benefit of remission in exercise of
    power under Article 32 of the Constitution of India. Speaking
    plainly, the prayer is totally misconceived. Section 32-A of the
    Narcotic Drugs and Psychotropic Substances Act, 1985, as far as
G   it took away the power of the Court to suspend the sentence
    awarded to the convict under the Act has been declared
    unconstitutional in * Dadu 's case. A convict can pray for
    suspension of sentence when the appeal is pending for
    adjudication. The said authority has upheld the constitutional
H
                                     278
           TARA SINGH & ORS. v. UNION OF INDIA                          279


validity of the Section insofar as it takes away the right of the       A
executive to suspend, remit and commute the sentence. Negation
of the power of the courts to suspend the sentence which has
been declared as unconstitutional, as has been held in * Dadu 's
case, does not confer a right on the convict to ask for suspension
of the sentence as a matter of right in all cases nor does it absolve
                                                                         B
fhe courts of their legal obligation to exercise the power of
suspension within the parameters prescribed under Section 37
of the NDPS Act. The constitutional power exercised under
Articles 72 and 161 is quite different than the power exercised
under a statute. [Para 19] [288-E-H; 289-A]
     1.2 The constitutional power engrafted under Articles 72 and        c
161 are different than the statutory power enshrined under
Section 433-A CrPC. The petitioners do not have a right to seek
remission under the Code because of Section 32A of the NDPS
Act. They can always seek relief either under Article 71 or 161
of the Constitution, as the case may be, as it is in a different         D
domain. [Para 20] [290-B]
     1.3 The instant factual matrix does not remotely suggest that
there has been violation of any fundamental right. There is no
violation of any law which affects the fundamental rights of the
petitioners. The argument that when a pardon or remission can            E
be given under Article 72 or 161 of the Constitution by the
constitutional authority, this Court can exercise the similar power
under Article 32 of the Constitution of India is absolutely based
on an erroneous premise. Article 32, as has been interpreted
and stated by the Constitution Bench and well settled in law, can
be only invoked when there is violation of any fundamental right         F
or where the Court takes up certain grievance which falls in the
realm of public interest litigation. Therefore, the submission is
repelled on the said score. [Para 22] [290-H; 291-A-C]
      Bandhua Mukti Morcha v. Union of India and Others
      (1984) 3 SCC 161:1984 (2) SCR 67; Samaj Parivartana                G
      Samudaya and Others v. State of Karnataka and Others
      (2013) 8 SCC 154: 2013 (6) SCR 810 - relied on.
     1.4 Where the minimum sentence is provided, it would not
be at all appropriate to exercise jurisdiction under Article 142 of
the Constitution of India to reduce the sentence on the ground           H
280           SUPREME COURT REPORTS                      [2016] 3 S.C.R.


A     of the so-called mitigating factors as that would tantamount to
      supplanting statutory mandate and further it would amount to
      ignoring the substantive statutory provision that prescribes
      minimum sentence. In view thereof, the submission to invoke
      Article 142 in conjunction with Article 32 of the Constitution is
      absolutely fallacious and is repelled. [Para 23) [292-C-E)
B
            Narendra Champaklal Trivedi v. State of Gujarat (2012)
            7 SCC 80: 2012 (6) SCR 165 - relied on.
            *Dadu @ Tulsidas v. State of Maharashtra (2000) 8
            SCC 437; Maru Ram v. Union of India and Others
c           (1981) 1 SCC 107; Maktool SinKh v. State of Punjab
            (1999) 3 SCC 321:1999 (1) SCR 1156; Union of India
            v. · V. Sriharan @ Murugan and Ors. 2015 (13) SCALE
            165; Ramdas Athawale (5) v. Union of India and Others
            (2010) 4 SCC 1: 2010 (3) SCR 1059; Supreme Court
            Bar Association v. Union of India and Another (1998)
D           4 SCC 409: 1998 (2) SCR 795 - referred to.
                            Case Law Reference
        (2000) 8 sec 437          referred to              Para3
        (1981) 1 sec 101          referred to              Para3
 E
        1999 (1) SCR 1156         referred to              Para 10
        2015 (13) SCALE 165       referred to              Para 19
        2010 (3) SCR 1059         referred to              Para 21
 F      1984 (2) SCR 67           relied on                 Para 22
        2013 (6) SCR 810          relied on                 Para 22
        1998 (2) SCR 795          referred to               Para 29
        2012 (6) SCR 165          relied on                 Para 23
 G
           CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)
      No. 190 of2014.
           Under Article 32 ofThe Constitution oflndia
          J. M. Khanna, Manoj Swarup, Ms. Neha Kedia, Mukul Kumar,
 H    Advs. for the Petitioners.
              TARA SINGH & ORS. v. UNION OF INDIA                                 281


     Ranjit Kumar, ASG, Rana Mukherjee, Sr. Adv., V. Madhukar, AAG, .. A
Anvita Cowshish, Kuldip Singh, Sunita Sharma, Sanjai Kumar Pathak,
T. C. Sharma, Manish Sharma, Ms. Sushma Suri, Advs. for the
Respondents.
       The Judgment of the Court was delivered by
       DIPAK MISRA, J. l. In this writ petition preferred under Article            B
32 of Constitution oflndia, the petitioners, who have been convicted for
the offence punishable under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for brevity, 'the NDPS Act') and
sentenced to undergo rigorous imprisonment for more than I 0 years and
to pay a fine of Rs. I lakh and in default of payment of fine, to suffer           c
further rigorous imprisonment for six months, have prayed for issue of
writ of mandamus to the respondent nos. I to 3 commanding them to
grant remission to them as per the provisions contained in Chapter XIX
of the New Punjab Jail Manual, 1996 (for short, 'the Manual').
     2. This writ petition was listed along with SLP(Crl) No. 4079 of              D
2012, wherein. at the time of issue of notice, the following issue was
noted:-
        "The poirtt which has been raised today on behalf of the petitioner
        is whether the remission granted by the Governor under Article
        161 of the Constitution has an overriding effect over the provisions
                                                                                   E
        of Section 32A of the NDPS Act. The matter needs consideration
        having regard to the views expressed by this Court in the case of
        Meru Ram''.
     The special leave petition stood abated as the sole petitioner therein
breathed his last during the pendency of the petition.
                                                                                   F
       3. It is the case of the petitioners that Chapter XIX of the Manual
lays down remission and award to the convicts depending upon good
conduct and performance of duties allotted to them while they are
undergoing sentence, but the benefit under the Chapter XIX of the Manual
is not made available to the convicts under the NDPS Act on the ground
                                                                                   G
that Section 32-A of the NDPS Act bars entitlement to such remission.
It is asserted in the writ petition that the constitutional validity of Section
32-A of the NDPS Act has been upheld in D(ldu ~ Tulsid(ls v. St(lfe of
M(l/mr(ls/ttra It is contended by the learned counsel for the petitioners
                1
                    •




1
    (2000) s sec 437
                                                                                   H
282             SUPREME COURT REPORTS                            [2016] 3 S.C.R.


A     that in Maru Ram v. Union of India and others', the constitutional
      validity of Section 433-A of Code of Criminal Procedure, 1973 (for short,
      'CrPC') was under challenge and the larger Bench of this Court has
      clearly held that it does not curtail the power of the executive under
      Articles 72 and 161 of the Constitution. Relying on the said decision, it
      is submitted that this Court can remit the sentence and the said power
B
      cannot be curtailed by any legislation. According to the learned counsel
      for the petitioners, a conjoint reading of Dadu's case and Maru Ram's
      case, the legal position is that remission schemes are effective guidelines
      for passing orders under Article 161 of the Constitution and, therefore,
      they have the force oflaw and, in any case, the principle in Dadu's case
c     clearly postulates that Section 32-A of the NDPS Act does not come in
      the way of executive for exercising the constitutional power under Article
      72 or 161 of the Constitution. On the aforesaid basis, it has been
      contended that the denial ofbenefit sought for by the petitioner is absolutely
      arbitrary and in total misunderstanding of the ratio laid down in Dadu's
      case.
D
            4. Learned counsel for the petitioners would further submit that
      Section 32-A of the NDPS Act cannot control the remission schemes
      which are effective guidelines under Article 161 of the Constitution and
      the statutory provision, by no stretch of imagination, create any fetter in
      exercise of the constitutional power. In the averments, a comparison
E     has been made on the conviction and sentence under the NDPS Act and
      Section 302 of the IPC.
            5. Learned counsel for the State has opposed the prayer of the
      petitioners on the ground that Section 32-A of the NDPS Act curtails the
      statutory power of the concerned Governmentand accordingly the same
 F    has been stipulated in the Manual and hence, no fault can be found with
      action taken by the State Government. Learned counsel for the State
      has further contended that once Section 32-A of the NDPS Act has
      been held to be constitutionally valid, the effort to compare the conviction
      and sentence under Section 302 IPC with that under Section 32-A of the
 G    NDPS Act is an exercise in futility.
           6. We have heard Mr. Ranjit Kumar, learned Solicitor General who
      has contended that the controversy is absolutely covered by the decision
      in Dadu (supra) and the petitioners cannot claim the benefit of the Jail
      Manual which is a guidance for exercise of constitutional powers by the
 H    ' (1981) 1sec101
            TARA SINGH & ORS. v. UNION OF INDIA                                283
                     [DIPAK MISRA, J.]

Governor. It is his further contention that the e.xercise of power under        A
Articles 72 and 161 of the Constitution is different than the remission
granted under Section 433-A ofCrPC.
      7. It is not in dispute that the petitioners have been convicted under
the NDPS Act and various offences and sentenced to suffer rigorous
imprisonment for more than I 0 years and to pay a fine of Rs. I lakh.           B
The singular issue is whether denial of remission under the Manual is
justified. Chapter XIX of the Manual deals with remission and reward.
Paragraphs 563 to 588 deal with remission system. Paragraphs 589 and
590 deal with reward. Paragraph 563 states that remission can be
granted to prisoners by the State Government/Inspector-General/
Superintendent Jails which is subject to withdrawal/forfeiture/revocation.
                                                                                c
It is not a right and the State Government reserves the right to debar/
withdraw any prisoner or category of prisoners from the concession of
remission. Paragraph 565 stipulates that remission is of three types,
namely, ordinary remission, special remission and the State Government
remission. Paragraph 567 postulates the eligibility criteria for prisoners      D
who will be eligible for earning the State Government remission.
Paragraph 571 provides what would constitute non-eligibility to get
ordinary remission. Paragraph 572 lays down that ordinary remission is
not earnable for certain offences committed after admission to jail.
Paragraph 576 deals with remission for good conduct. Paragraph 581
provides for special remission. It lays down that special remission may         E
be given to any prisoner except such prisoners who are depriveJ of
remission by way of punishment whether entitled to ordinary remission
or not for special reasons. Certain examples have been incorporated in
 special remission.
      8. The Government of Punjab, Department of Home Affairs and               F
Justice through Governor has issued an order in exercise of powers
conferred by Section 432 ofCrPC and Article 161 of the Constitution of
India on 13'h day of April, 2007 for grant of remission of sentence to
certain types of convicts. The said order contains that instructions
contained in the order shall not apply to the persons sentenced under the
                                                                                G
Foreigners Act, 1946 and the Passport Act, 1967 and the Narcotic Drugs
and Psychotropic Substances Act, 1985. Similar circulars have been
issued on 1.9.2008, 1.6.2010, 1.4.2011, 12.4.2012, 14.8.2013 and
13.8.2014. The said orders have been passed keeping in view the language
used in Section 32-A of the NDPS Act and the judgment delivered in
Dadu's case. Section 32-A of the NDPS Act reads as follows:-                    H
284            SUPREME COURT REPORTS                           [2016] 3 S.C.R.


A           "32-A. No suspension, remission or commutation in any
            sentence awarded under this Act.-Notwithstanding anything
            contained in the Code of Criminal Procedure, 1973 or any other
            law for the time being in force but subject to the provisions of
            Section 33, no sentence awarded under this Act (other than Section
            27) shall be suspended or remitted or commuted."
B
           9. In Dadu's case, the three-Judge Bench scanning the provisions
      have laid down that:-
            "13. A perusal of the section would indicate that it deals with
            three different matters, namely, suspension, remission and
c           commutation of the sentences. Prohibition contained in the section
            is referable to Sections 389, 432 and 433 of the Code. Section 432
            of the Code provides that when any person has been sentenced
            to punishment for an offence, the appropriate Government may,
            at any time, without conditions or upon conditions which the person
            sentenced accepts, suspend the execution of his sentence or remit
D           the whole or any part of the punishment to which he has been
            sentenced in the manner and according to the procedure prescribed
            therein."
            I 0. After so stating, the Court referred to Section 433 Cr PC, which
      empowers the Appropriate Government to commute the sentence.
E     Thereafter, deliberation centered on Section 389 ofCrPC. The Bench
      referred to the decision in Maktoo/ Singh v. State of Punjab' and in
      that context opined:-
            " ... The distinction of the convicts under the Act and under other
            statutes, insofar as it relates to the exercise of executive powers
F           under Sections 432 and 433 of the Code is concerned, cannot be
            termed to be either arbitrary or discriminatory being violative of
            Article 14 of the Constitution. Such deprivation of the executive
            can also not be stretched to hold that the right to life of a person
            has been taken away except, according to the procedure
G           established by law. It is not contended on behalf of the petitioners
            that the procedure prescribed under the Act for holding the trial is
            not reasonable, fair and just. The offending section, insofar as it
            relates to the executive in the matter of suspension, remission and
            commutation of sentence, after conviction, does not, in any way,

H     ' (1999) 3 sec 321
           TARA SINGH & ORS. v. UNION OF INDIA                                   285
                    rrnPAK MISRA, J.l

      encroach upon the personal liberty of the convict tried fairly and         A
      sentenced under the Act. The procedure prescribed for holding
      the trial under the Act cannot be termed to be arbitrary, whimsical
      or fancifu I. There is, therefore, no vice of unconstitutionality in
      the section insofar as it takes away the powers of the executive
      conferred upon it under Sections 432 and 433 of the Code, to
                                                                                  B
      suspend, remit or commute the sentence of a convict under the
      Act."
      11. Thereafter, the Court addressed to the concern expressed by
the learned counsel for the parties with regard to the adverse effect of
the Section on the powers of the judiciary. After referring to various
authorities, the Court opined thus:-
                                                                                  c
      "25. Judged from any angle, the section insofar as it completely
      debars the appellate courts from the power to suspend the
      sentence awarded to a convict under the Act cannot stand the
      test of constitutionality. Thus Section 32-A insofar as it ousts the
      jurisdiction of the court to suspend the sentence awarded to a              D
      convict under the Act is unconstitutional."
     12. Thereafter, the Court held:-
      "26. Despite holding that Section 32-A is unconstitutional to the
      extent it affects the functioning of the criminal courts in the country,    E
      we are not declaring the whole of the section as uncon'stitutional
      in view of our finding that the section, insofar as it takes away the
      right of the executive to suspend, remit and commute the sentence,
      is valid and intra vires of the Constitution. The declaration of
      Section 32-A to be unconstitutional, insofar as it affects 'the
      functioning of the courts in the country, would not render the whole        F
      of the section invalid, the restriction imposed by the offending
      section being distinct and severable."
     13. The eventual conclusions in the said case are:-
      "29. Under the circumstances the writ petitions are disposed of
                                                                                  G
      by holding that:
      (J) Section 32-A does not in any way affect the powers of the
      authorities to grant parole.
      (2) It is unconstitutional to the extent it takes away the right of the
      court to suspend the sentence of a convict under the Act.                   H
286            SUPREME COURT REPORTS                          [2016) 3 S.C.R.


A           (3) Nevertheless, ·a sentence awarded under the Act can be
            suspended by the appellate court only and strictly subject to the
            conditions spelt out in Section 37 of the Act, as dealt with in this
            judgment."
           14. Having appreciated the analysis made in the aforesaid verdict,
B     we may advert to the statutory scheme pertaining to suspension, remission
      and commutation of sentence under the CrPC. Section 432 deals with
      power to suspend or remit sentences. Section 433 deals with power to
      commute sentences. Section 433-A lays the postulate for restrictions
      on powers of remission or commutation in certain cases. The said
      provision reads as follows:-
c
            "433-A. Restriction on powers of remission or commutation
            in certain cases. - Notwithstanding anything contained in Section
            432, where a sentence of imprisonment for life is imposed on
            conviction of a person for an offence for which death is one of
            the punishments provided by law, or where the sentence of death
D           imposed on a person has been commuted under Section 433 into
            one of imprisonment for life, such person shall not be released
            from prison unless he had served at least fourteen years of
            imprisonment."
            15. The constitutional validity of Section 433-A was challenged in
E     Maru Ram (supra) and the said provision has been held to be intra
      vires. While dealing with the constitutional validity, Krishna Iyer, J.,
      speaking for the majority, distinguished the power conferred under the
      constitutional authorities under Articles 72 and 161 and the power
      conferred under the Code. In the said case, it has been held that:-
 F           "59 ...... But two things may be similar but not the same. That is
             precisely the difference. We cannot agree that the power which
             is the creature of the Code can be equated with a high prerogative
             vested by the Constitution in the highest functionaries of the Unjon
             and the States. The source is different, the substance is different,
             the strength is different, although the stream may be flowing along
 G
             the same bed. We see the two powers as far from being identical,
             and, obviously, the constitutional power is "untouchable" and
             "unapproachable" and cannot suffer the vicissitudes of simple
             legislative processes. Therefore, Section 433-A cannot be
             invalidated as indirectly violative ofArticles 72 and 161. What the
 H           Code gives, it can take, and so, an embargo on Sections 432 and
           TARA SINGH & ORS. v. UNION OF INDIA                                 287
                    [DIPAK MISRA, J .]

      433(a) is within the legislative powerof Parliament.                      A
      60. Even so, we must remember the constitutional status ofArticles
      72 and 161 and it is common ground that Section 433-A does not
      and cannot affect even a wee bit the pardon power of the Governor
      or the President. The necessary sequel to this logic is that
      notwithstanding Section 433-A the President and the Governor              B
      continue to exercise the power of commutation and release under
      the aforesaid articles."
     16. After so stating. the Court posed the question, whether the
Parliament has indulged in legislative futility with a formal victory but a
real defeat? The Court answered stating 'yes' and 'no'. Explaining              c
further, the larger Bench opined:-
      "An issue of deeper i"mport demands our consideration at this
      stage of the discussion. Wide as the powerofpardon, commutation
      and release (Articles 72 and 161) is, it cannot run riot; for no legal
      power can run unruly like John Gilpin on the horse but must keep          D
      sensibly to a steady course. Here, we come upon the second
      constitutional fundamental which underlies the submissions of
      counsel. It is that all public power, including constitutional power,
      shall never be exercisable arbitrarily or mala fide and, ordinarily,
      guidelines for fair and equal execution are guarantors of the valid
      play of power. We proceed on the basis that these axioms are              E
      valid in our constitutional order".
     17. The majority thereafter dealt with the powers conferred under
the constitutional authorities under Articles 72 and 161 and eventually
concluded as follows:-
                                                                                F
        "72.
        ( 4) We hold that Section 432 and Section 433 are not a
        manifestation of Articles 72 and 161 of the Constitution
        but a separate, though similar power, and Section 433-
        A, by nullifying wholly or partially these prior provisions
                                                                                G
        does not violate or detract from the full operation of the
        constitutional power to pardon, commute and the like.
        xxxxx xxxxx
        ( 8) The power under Articles 72 and 161 of the
        Constitution can be exercised by the Central and State                  H
288             SUPREME COURT REPORTS                            [2016] 3 S.C.R.


A             Governments, not by the President or Governor on their
              own. The advice of the appropriate Government binds
              the Head of the State. No separate order for each
              individual case is necessary but any general order made
              must be clear enough to identify the group of cases and
              indicate the application of mind to the whole group.
B
              (9) Considerations for exercise of power under Articles
              72/161 may be myriad and their occasions protean, and
              are left to the appropriate Government, but no
              consideration nor occasion can be wholly irrelevant,
              irrational, discriminatory or mala fide. Only in these rare
c             cases will the court examine the exercise.
            18. The aforesaid decision makes it clearthatthe exercise of powers
      under Article 72 or 161 is quite different than the statutory power of
      remission. On that fundamental bedrock, the provision enshrined under
      Section 32-A, barring a part of the provision, has been held constitutionally
D     valid in D(ldu's case. The principle stated in D"du (supra) does not run
      counter to the ratio laid down in M"ru R"m (supra). It is in consonance
      with the same.
             19. The petitioners have invoked the power of this Court to grant
      the benefit of remission in exercise of power under Article 32 of the
E     Constitution oflndia. Speaking plainly, the prayer is totally misconceived.
      It is urged in a different manner before us that the power exercised by
      this Court under Article 32 and Article 142 of the Constitution cannot be
      statutorily controlled. Though the argument strikes a note ofinnovation,
      yet the innovation in the case at hand cannot be allowed to last long, for
F     it invites immediate repulsion. Section 32-A of the NDPS Act, as far as
      it took away the power of the Court to suspend the sentence awarded to
      the convict under the Act has been declared unconstitutional in D{(du 's
      case. A convict can pray for suspension of sentence when the appeal is
      pending for adjudication. The aforesaid authority has upheld the
      constitutional validity of the Section insofar as it takes away the right of
G     the executive to suspend, remit and commute the sentence. Negation of
      the power of the courts to suspend the sentence which has been declared
      as unconstitutional, as has been held in D"du's case, does not confer a
      right on the convict to ask for suspension of the sentence as a matter of
      right in all cases nor does it absolve the courts of their legal obligation to
H     exercise the power of suspension within the parameters prescribed under
              TARA SINGH & ORS. v. UNION OF INDIA                                289
                       [DIPAK MISRA, J.]

Section 37 of the NDPS Act. The constitutional power exercised under             A
Articles 72 and 161 is quite different than the power exercised under a
statute. Recently, in Union of India v. V. Srilzaran ® Murugan and
ors', echoing the principle stated in Maru Ram (supra), it has been
held:-
         "As has been stated by this Court in Maru Ram (supra) by the             B
         Constitution Bench, that the Constitutional power ofremission
         provided under Articles 72 and 161 of the Constitution will
         always remain untouched, inasmuch as, though the statutory
         power of remission, etc., as compared to Constitution power under
         Articles 72 and 161 looks similar, they are not the same.
         Therefore, we confine ourselves to the implication of statutory
         power of remission, etc., provided under the Criminal Procedure
         Code entrusted with the Executive of the State as against the
         well thought out judicial decisions in the imposition of sentence
         for the related grievous crimes for which either capital
         punishment or a life sentence is provided for. When the said             D
         distinction can be clearly ascertained, it must be held that there is
         a vast difference between an executive action for the grant of
         commutation, remission etc., as against a judicial decision. Time
         and again, it is held that judicial action forms part of the basic
         structure of the Constitution. We can state with certain amount
                                                                                  E
         of confidence and certainty, that there will be no match for a
         judicial decision by any of the authority other than
          Constitutional Authority, though in the form of an executive action,
         having regard to the higher pedestal in which such Constitutional
          Heads are placed whose action will remain unquestionable except
          for Jack of certain basic features which has also been noted in         F
          the various decisions of this Court includingMaru Ram (supra)".
      20. What is being urged is as constitutional powers under Articles
72 and 161 are different and they remain untouched even by sentence
of this Court, similar powers can be exercised under Article 32 of the
Constitution oflndia. Article 32 of the Constitution oflndia enables a            G
citizen to move this Court for enforcement of his fundamental rights.
Moving this Court for the said purpose is fundamental. The larger Bench
of the Court has already upheld the constitutional validity of Section
433-A CrPC. The three-Judge Bench has declared barring a small part
 4
     2015 ( 13) SCALE 165
                                                                                  H
290            SUPREME COURT REPORTS                           [2016) 3 S.C.R.


A     of Section 32-A of the NDPS Act as constitutional. The recent
      Constitution Bench decision in V. Srilumm (supra) has clearly opined
      that the constitutional power engrafted under Articles 72 and 161 are
      different than the statutory power enshrined under Section 433-A CrPC.
      The petitioners do not have a right to seek remission under the Code
      because of Section 32A of the NDPS Act. They can always seek relief
B
      either under Article 71 or 161 of the Constitution, as the case may be.
      That is in a different domain.
            21. The issue here is whether a writ of mandamus can be issued to
      authorities to grant remission to the petitioners. In Ramdas Atlwwa/e
      (5) v. Union of India and others;, it has been held by the Constitution
c     Bench that:-
            "46. It is equally well settled that Article 32 of the Constitution
            guarantees the right to a constitutional remedy and relates only to
            the enforcement of the right conferred by Part III of the Constitution
            and unless a question of enforcement of a fundamental right arises,
D           Article 32 does not apply. It is well settled that no petition under
            Article 32 is maintainable, unless it is shown that the petitioner
            has some fundamental right. In Northern Corpn. v. Union of
            India 6 this Court has made a pertinent observation that when a
            person complains and claims that there is a violation of law, it
 E          does not automatically involve breach of fundamental right for
            the enforcement of which alone Article 32 is attracted.
            4 7. We have carefully scanned through the averments and
            allegations made in the writ petition and found that there is not
            even a whisper of any infringement of any fundamental right
 F          guaranteed by Part III of the Constitution. We reiterate the principle
            that whenever a person complains and claims that there is a
            violation of any provision of law or a constitutional provision, it
            does not automatically involve breach of fundamental right for
            the enforcement of which alone Article 32 of the Constitution is
            attracted. It is not possible to accept that an allegation of breach
 G          of law or a constitutional provision is an action in breach of
            fundamental right. The writ petition deserves dismissal only on
            this ground".
           22. The present factual matrix does not remotely suggest that there
      ' (2012320)4 sec 1
 H    • (1990) 4 sec 239
               TARA SINGH & ORS. v. UNION OF INDIA                                 291
                        [DIPAK MISRA, J.]

has been violation of any fundamental right. There is no violation of any           A
law which affects the fundamental rights of the petitioners. The argument
that when a pardon or remission can be given under Article 72 or 161 of
the Constitution by the constitutional authority, this Court can exercise
the similar power under Article 32 of the Constitution oflndia is absolutely
based on an erroneous premise. Article 32, as has been interpreted and
                                                                                    B
stated by the Constitution Bench and well settled in law, can be only
invoked when there is violation of any fundamental right or where the
Court takes up certain grievance which falls in the realm of public interest
litigation, as has been held in Band/ma Mukti More/ta v. Union of
India and otlters 7 and Samaj Parivartana Samudaya and others v.
State of Karnataka and otlters8• Therefore, we repel the submission                 c
on the said score. It has also been argued that this Court can issue a
direction to do complete justice to grant remission. In this context, a
passage from Supreme Court Bar Association v. Union o.f India and
anotlter9 is apt quoting:-
         "48. The Supreme Court in exercise of its jurisdiction under Article       D
         142 has the power to make such order as is necessary for doing
         complete justice 'between the parties in any cause or matter
         pending before it'. The very nature of the power must lead the
         Court to set limits for itself within which to exercise those powers
         and ordinarily it cannot disregard a statutory provision governing
         a subject, except perhaps to balance the equities between the              E
         conflicting claims ofthe litigating parties by 'ironing outthe creases'
         in a cause or matter be.fore it. Indeed this Court is not a court of
         restricted jurisdiction of only dispute-settling. It is well recognised
         and established that this Court has always been a law-maker and
         its role travels beyond merely dispute-settling. It is a 'problem-         F
         solver in the nebulous areas' (see K. Veeraswami v. Union of
         India'") but the substantive statutory provisions dealing with the
         subject-matter of a given case cannot be altogether ignored by
         this Court, while making an ord~r under Article 142. Indeed, these
         constitutional powers cannot,· in any way, be controlled by any
                                                                                    G

1
     (1984) 3 sec 161
• (2013) 8 sec 154
' (1998) 4 sec 409
10
     (1991) 3 sec 655
                                                                                    H
292                SUPREME COURT REPORTS                        [2016] 3 S.C.R.



A             statutory provisions but at the same time these powers are not
              meant to be exercised when their exercise may come directly in
              conflict with what has been expressly provided for in a statute
              dealing expressly with the subject."
                                                           [emphasis in original]
B          23. In Narendra Clwmpak/al Trivedi v. State of Gujarat 11 , a
      two-Judge Bench of this Court while dealing with reduction of sentence
      in respect of mandatory sentence has held:-
              " ... where the minimum sentence is provided, we think it would
              not be at all appropriate to exercise jurisdiction under Article 142
c             of the Constitution oflndia to reduce the sentence on the ground
              of the so-called mitigating factors as that would tantamount to
              supplanting statutory mandate and further it would amount to
              ignoring the substantive statutory provision that prescribes minimum
              sentence for a criminal act relating to demand and acceptance of
D             bribe. The amount may be small but to curb and repress this kind
              of proclivity the legislature has prescribed the minimum sentence".
           In view of the aforesaid, the argument to invoke Article 142 in
      conjunction with Article 32 of the Constitution is absolutely fallacious
      and we unhesitatingly repel the same.
 E          24. Consequently, we do not perceive any merit in this writ petition
      -and accordingly, the same stands dismissed.
      Nidhi Jain                                             Writ petition dismissed.




      11
           (2012) 1 sec so