Supreme Court of India
UNION OF INDIAversusV. SRIHARAN @ MURUGAN & ORS.
- Citation
- 2014 INSC 347
- Decided
- 25 April 2014
- Disposal
- Matter referred to larger bench
- Bench
- P SATHASIVAM
Holding
The matter, including all seven questions, is referred to a Constitution Bench for authoritative determination.
Summary
The Union of India moved a writ petition under Art. 32 seeking to quash a Tamil Nadu Government letter proposing remission of life sentences for seven convicts in the Rajiv Gandhi assassination case, after the Supreme Court had earlier commuted death sentences of three of them to life imprisonment. The Court examined whether a life sentence resulting from commutation is a ‘special category’ that bars any further remission, who the ‘appropriate Government’ is under CrPC s. 432/433, whether the Union or the State has primacy in remission matters, and whether the executive can exercise remission suo motu or must obtain concurrence under s. 435. After detailed analysis, the Court referred all seven questions to a Constitution Bench, dismissed ancillary petitions, and ordered that interim orders remain in force pending the Bench’s decision.
Issues considered
- Whether imprisonment for life under IPC s. 45 & s. 53, when resulting from commutation of death penalty, means imprisonment for the remainder of the convict's life and is beyond the scope of remission as per Swamy Shraddananda.
- Whether the 'appropriate Government' may exercise remission under CrPC s. 432/433 after the President (Art. 72) or Governor (Art. 161) or the Court (Art. 32) has already exercised remission power.
- Whether CrPC s. 432(7) gives primacy to the Union’s executive power and excludes the State’s power where the Union’s power is co‑extensive.
- Whether the Union or the State has primacy over subject‑matter listed in List III of the Seventh Schedule for exercising remission power.
- Whether two 'appropriate Governments' can exist simultaneously in a single case under s. 432(7).
- Whether a suo motu exercise of remission power under s. 432(1) is permissible and if the procedure in s. 432(2) is mandatory.
- Whether the term 'consultation' in s. 435(1) implies 'concurrence' of the Central Government.
Legislation cited
- Code of Criminal Procedure, 1973s. 432, s. 433, s. 435
- Constitution of Indias. Art. 145(3), s. Art. 161, s. Art. 162, s. Art. 32, s. Art. 72, s. Art. 73
- Indian Penal Code, 1860s. 45, s. 53, s. 55A(b)
- Prisons Act, 1894s. 59
Subjects
commutation of death penaltylife imprisonmentremissionappropriate governmentSection 432 CrPCSection 435 CrPCArticle 72Article 161Article 32constitutional benchRajiv Gandhi assassinationexecutive powerconsultation vs concurrencesuo motu remissionspecial category of life sentence
Judgment
· [2014] 5 S.C.R. 724
A UNION OF INDIA
v.
V. SRIHARAN @ MURUGAN & ORS.
(Writ Petition (Crl.) No. 48 of 2014 etc.)
APRIL 25, 2014
B
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
N.V. RAMANA, JJ.]
Constitution of India, 1950:
c
Art. 32 and Arts. 72 and 161 rlw Art. 145(3) - Death
sentence commuted by Supreme Court - Decision of State
Government to grant remission to seven accused of Rajiv
Gandhi assassin§ltion case - Letter by State Government to
Central Government in that regard - Writ petition by Central
0
Government seeking to quash the said letter - Issues
regarding meaning of 'imprisonment for life', power of
executives, both the Centre and the State, to grant remission,
consideration for remission by executive once power of
remission under Arts. 72, 161 or under Art. 32 has been
E exercised; 'appropriate Government' uls 432(2) CrPC to
exercise power of remission, etc. - Referred for consideration
of Constitution Bench - Penal Code, 1860 - ss. 45 and 53 -
Code of Criminal Procedure, 1973 - ss.432 and 435.
F After the judgment dated 18-2-2014 passed by the
Supreme Court in V. Sriharan's case 1 commuting the
death sentence of three accused into imprisonment for
life, the Govt. of Tamilnadu took a decision to grant
remission to seven accused in Rajiv Gandhi
G assassination case and, accordingly, sent a letter dated
19.2.2014 to the Union Govt. proposing to remit the
1. V. Sriharan @ Murugan & Ors. vs. Union of India & Ors. 2014 (2) SCALE
505.
H 724
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 725
sentence of life imprisonment and to release the said A
seven accused persons. The Union of India filed Writ
Petition (Crl.) No. 48 of 2014 seeking to quash the letter
dated 19.2.2014 issued by the Govt. of Tamilnadu. Writ
Petition (Crl.) no. 105 of 2008 was filed by respondent no.
6 in Writ Petition (Crl) No. 48 of 2014 seeking to quash B
G.O. No. 873 dated 14.09.2006, G.O. No. 671 dated
10.05.2007 and G.O. (D) No. 891 dated 18.07.2007 issued
by the State of Tamil Nadu. Crl. M.P Nos. 4622-24 of 2014
were filed by the Union of India seeking to restrain the
State Govt. from passing any order of remission and c
releasing the convicts from prison. Since in Writ Petition
(Crl.) No. 105 of 2008, the petitioner was one of the
respondents (respondent No. 6) in Writ Petition (Crl.) No.
48 of 2014 and Writ Petition (Crl.} No. 105 of 2008 was not
pressed, the Court dismissed the same as not pressed. 0
Likewise, Crl. M.P. Nos. 4622, 4623 and 4624 of 2014 in
T.C.(Crl.) Nos. 1, 2 and 3 of 2012 respectively were also
dismissed.
Referring the issues arising in WP (Crl.) no. 48 of 2014
to the Constitution Bench, the Court E
HELD: 1.1. The commutation of death penalty to life
imprisonment can befall at two stages: firstly, when the
appellate court deems it fit to commute the death
sentence to life imprisonment. The primary question that F
arises for consideration at this juncture is whether the
Court has the power to substitute the death penalty for
imprisonment for life (meaning until end of life) and put
this category beyond the application of remission. [para
36,37 and 42] [747-H; 748-A,B-C] G
Swamy Shraddananda vs. State of Karnataka, 2008 (11)
SCR 93 = (2008) 13 SCC 767; Bhagirath vs. Delhi
Administration 1985 (~) SCR 743 = (1985) 2 SCC 580 -
referred to.
H
726 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 1.2. The second stage is when the executive
exercises its remission power under Art. 72 of the
Constitution of India by the President or under Art. 161
by the Governor or under Arts. 32 by this Court in ~ts
judicial review jurisdiction and the commutation of death
B penalty into life imprisonment is permitted. The issue in
this regard is whether once power of remission under
Arts. 72 or 161 or by this Court exercising Constitutional
power under Art. 32 is exercised, is there any scope for
further consideration for remission by th.e executive. The
c issue of such a nature has been raised for the first time
in this Court, which has wide ramification in determining
the scope of application of power of remission by the
executives - both the Centre and the State. [para 43 ·and
45] [751-C; 752-B-C]
D 1.3. Inasmuch as the issue vis-a-vis who is the
'appropriate Government' u/s 432(7) of the Code to
exercise the power of remission is -concerned, and
whether there can be two a·ppropriate Governments in
one case, further whether the term "consultation" means
E "concurrence" u/s 435(1) of the Code, these questions in'
the given case are contingent on the final decision to be
arrived at in the first issue. [para 46] [752-D, E-F]
1.4. Considering the wider interpretation of the
F provisions of the Constitution and the .Code· involved in
the matter, this Court considers it fit to refer the matter
to the Constitution Bench for an authoritative
interpretation on the same. In fact, such a course of
action is mandated by the provisions of Arts. 145(3) of the
G Constitution. Accordingly, the questions framed in the
judgment are referred for consideration of ·the
Constitution Bench. [para 46] [752-F-G]
1.5. All the interim orders granted earlier will continue
till final decision to be taken by the Constitution Bench
H in Writ Petition (Crl.) No.4~ of 2014. [para 50] [754-F-G]
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 727
~s.R. Bommai vs. Union of India, 1994 (2) SCR 644 = A
(1994) 3 SCC 1; Latu Prasad Yadav vs. State of Bihar, 2010
(4). SCR 334 = (2010) 5 SCC 1; Mohinder Singh vs. State of
Punjab, 2013 (3) SCR 90 = (2013) 3 SCC 294; State of
Gujarat vs. R.A. Mehta, 2013 (1 ) SCR 1 = (2013) 3 sec 1;
G.V. Ramanaiah vs. Supt. Of Central Jail, 1974 (1) B
=
SCR 852 (197 4) 3 SCC 531; State of M.P. vs. Ratan Singh,
1976 (0) Suppl. SCR 552 = (1976) 3 SCC 470; State of M.P.
vs. Ajit Singh, (1976) 3 sec 616; Government of A.P. vs. M. T.
Khan, 2003 (6) Suppl. SCR 490 = (2004) 1 sec 616;
Romesfl Thapar vs. State of Madras 1950 SCR 594 =AIR c
1950 SC 124; State of"U.P. vs. Rakesh Kumar Keshari, 2011
(~) SCR 1060 = (2011) 5 sec 341; L & T McNeil Ltd. vs.
Government of Tamil Nadu 2001 (1) SCR 701 = 2001(3)
SCC· 170; State of U. P. & Anr. vs. Johri Mal, 2003(4) SCC
714;·.Justice Chandrashekaraiah vs. Janekere C. Krishna, 0
io13 (3) SCR 987 = (2013) 3 SCC 117; Supreme Court Bar
Assbciation vs. UOI, 1998 (2) SCR 795 = (1998) 4 SCC 409;
Manohar Lal Sharma vs. Principal Secretary, (2014) 2 SCC
532; S.P. Gupta vs. Union of India, 1982 SCR 365 = (1981)
Supp SCC 87; Supreme Court Advocates-on-Record
Association vs. Union of India 1993 (2) Suppl. SCR 659 = E
(1993) 4 sec 441 - ·cited.
Case Law Reference:
2014 (2) SCALE 505 referred to para 1
F
1994 (2) SCR 644 cited para 12
2010 (4) SCR. 334 cited para 13
2013 (3) SCR 90 cited para 15
G
2013 (1) SCR 1 cited para 16
2008 (11) SCR 93 referred to para 17
1974 (1)" SCR 852 cited para 21
H
728 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 1976 (0) Suppl. SCR 552 cited para 21
(1976) 3 sec 616 cited para 21
2003 (6) Suppl. SCR490 cited para 21
1950 SCR 594 cited para 23
B
2011 (5) SCR 1060 cited para 27
2001 (1) SCR 701 cited para 27
2003(4) sec 114 cited para 27
c
2013 (3) SCR 987 cited para 27
1998 (2) SCR 795 cited para 30
(2014) 2 sec 532 cited para 30
D 1982 SCR 365 cited para 31
1993 (2) Suppl. SCR 659 cited para 31
1985 (3) SCR 743 referred to para 34
E CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 48 of 2014.
Under Article 32 of the Constitution of India.
WITH
F
W.P. (Crl.) No. 105 of 2008,
Crl.M.P. Nos. 4622, 4623 & 4644 of 2014 in T.C. (Crl.) No. 1,
2 & 3 of2012.
G Goolam E. Vahanvati, A.G., Sidharth Luthra, ASG, Rakesh
Dwivedi, Mukul Rohatgi, Ram Jethmalani, Subramonium
Prasad, AAG, Supriya Juneja, Anoopam Prasad, Nizani
Pasha, Tara Narula, Aadil Boparai, D.L. Chidananda,
Ravindera Kr. Verma, Nitin Saluja, B. Krishna Prasad, S.
H Gowthaman, Sureshan P., M. Yogesh Kanna, Vanita·
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 729
Chandrakant Giri, Dr. Yug Chaudhary, Kovilan Poonkuntran, A
Geetha Kovilan, Siddhartha Sharma, S. Prabu
Ramasubramanian, Vimal Kanth, Lata Krishnamurti, P.R. Mala,
Pranav Diesh, K. Paari Vendhan, Sethu Mahe_ndran, S.
Gowthaman, Sanjay R. Hegde, S. Nithin, K.M.D. Muhilan, Anil
Kumar Mishra-I, S. Thananjayan, Shreekant N. Terdal for the B
appearing parties.
The Judgment of the Court was delivered by
P.SATHASIVAM, CJI.
c
Writ Petition (Crl.) No. 48 of 2014
1. This writ petition, under Article 32 of the Constitution of
India, has been filed by the Union of India praying for quashing
of letter dated 19.02.2014, issued by the Chief Secretary;
0
.Government of Tamil Nadu to the Secretary, Government of
India wherein the State of Tamil Nadu proposes to remit the
sentence of life imprisonment and to release Respondent Nos.
1-7 herein who were convicted in the Rajiv Gandhi
Assassination Case in pursuance of commutation of death
sentence of Respondent Nos. 1-3 herein by this Court on E
18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V.
Sriharan @ Murugan & Ors. vs. Union of India & Ors. 2014
(2) SCALE -SOS.
Writ Petition (Crl.) No. 105 of 2008 F
2 ..ln"lhe above writ petition, the petitioner who has been
arra}'ed as Respondent No. 6 in Writ Petition (Crl.) No. 48 of
2014 (filed by the Union of India) prays for quashing of G.O.
No. 873 dated 14.09.2006, G.O. No. 671"dated 10.05.2007 and
G.O. (D) No. 891 dated 18.07.2007 issued by the State of Tamil G
Nadu, Home Department as the same are unconstitutional. In
effect. the petitione'r prayed for.remission of his sentence, which
was rejected by the Advisory Board.
H
730 SUPREME COURT REPORTS [2014] 5 S.C.R.
A Criminal M.P. Nos. 4622-24 of 2014
3. When the State of Tamil Nadu, in their letter dated,
19.02.2014, sought for views of the Union of India for the
release of Respondent No.s. 1-7 in Writ Petition (Criminal) No.
B 48 of 2014 within three days from the date of receipt of the
same, the Union of India filed the above criminal misc. petitions
before this Court praying for restraining the State Government
from passing any order of remission and releasing them from
prison.
C Factual Background:
4. Pursuant to the judgment of this Court dated 18.02.2014
in V. Sriharan @ Murugan (supra), the Government of Tamil
Nadu took a decision to grant remissiqn to Respondent Nos.
0 1 to 7. Accordingly, the Government of Tamil Nadu sent a letter
dated 19.02.2014 to the Secretary to the Government of India,
Ministry of Home Affairs, stating that it proposes to remit the
sentence of life imprisonment on V. Sriharan @ Murugan, T.
Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu and
E release them. In that letter, it was further stated that four other
persons, namely, Jayakumar, Robert Payas, S. Nalini and P.
Ravichandran, convicted in the same assassination would also
procure similar remission. Besides, it was asserted in the letter
that since the crime was investigated by the Central Bureau of
Investigation (CBI) and as per Section 435 of the Code of
F Criminal Procedure, 1973 (in short "the Code"), the State
Government, while exercising its power under Section 432 of
the Code, must act after consultation with the Central
Government, accordingly, it requested to indicate the views of
the Union of India within three days on the proposal to release
G the seven persons mentioned above.
5. Accordingly, in these matters, we are called upon to
decide the legitimacy of the proposal of the State Government
to release Respondent Nos. 1 to 7, who are facing life
H sentence. For the purpose of disposal of the issue in question,
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 731
- [P. SATHASIVAM, CJI.]
we reit~rate the relevant provisions. Sections 432 and 435 of A
the Code read as under:
-"432 - Power to suspend or remit sentences
(1) When any person has been sentenced to punishment
for an offence, the appropriate Government may, at any B
lime, without conditions or upon any conditions which the
perso'n sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment
to·which he has been sentenced.
c
(2) Whenever an application is made to the appropriate
Government for the suspension or remission of a
sentence, the appropriate Government may require the
presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion as 0
to whether the application should be granted or refused,
together with his reasons for such opinion and also to
forward with the statement of such opinion a certified copy
of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been E
suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government may
. cancel the suspension or remission, and thereupon the
person in whose favour the sentence has been suspended
or remitted may, if at large, be arrested by any police F
officer, without warrant and remanded to undergo the
unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by G
the person in whose favour the sentence is suspended or
remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or
special orders, give directions as to the suspension of
H
732 SUPREME COURT REPORTS [2014} 5 S.C.R. ,
A sentences and the conditions on which petitions should be
presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the age
of eighteen years, no such petition by the person
B
sentenced or by any other person on his behalf shall be
entertained, unless the person sentenced is in jail, and,-
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail; or
c
(b) where such petition is made by any other person, it
contains a declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also
apply to any order passed by a Criminal Court under any
D section of this Code or of any other law which restricts the
liberty of any person or imposes any liability upon him or
his properly.
(7) In this section and in section 433, the expression
E "appropriate Governmenf' means,-
{a) in cases where the sentence is for an offence against,
or the order referred to in sub-section (6) is passed under,
any law relating to a matter to which the executive power
of the Union extends, the Central Government;
F
(b) in other cases the Government of the State within which
the offender is sentenced or the said order is passed.
435 - State Government to act after consultation with
G Central Government in certain cases
(1) The powers conferred by sections 432 and 433 upon
the State Government to remit or commute a sentence, in
any case where the sentence is for an offence-
H (a) which was investigated by the Delhi Special PGlice
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 733
[P. SATHASIVAM, CJI.]
Establishment constituted under the Delhi Special Police A
Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction of, 8
or damage to, any property belonging .to the Central
Government, or
(c) which was committed by a person in the service of the
Central Government, while acting or purporting to act in ttie
discharge of his official duty. C
shall not be exercised by the State Government except
after consultation with the Central Government.
(2) No order of suspension; remission or commutation of
0
sentences passed by the State Government in relation to
a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the
Union extends, and who has been sentenced to separate
terms of imprisonment which are to run concurrently, shall
have effect unless an order for the suspension, remission E
or commutation, as the case may be, of such sentences
has also been made by the Central Government in relation
to the offences committed by such person with regard to
matters to which the executive power of the Union extends."
F
6. In addition to the above provisions of the Code, we are
concerned with certain provisions of the Constitution of India
also. Article 73 speaks about the extent of executive power of
the Union, which reads as under:
G
"73 - Extent of executive power of the Union
(1) Subject to the provisions of this Constitution, the
.executive power of the Union shall extend-:-
H
734 SUPREME COURT REPORTS [2014] 5 S.C.R.
A (a) to the matters with respect to which Parliament has
power to make laws; and
(b) to the exercise of such rights, authority and jurisdictl'on
as are exercisable by the Government of India by virtue of
any treaty on agreement:
B
Provided that the executive power referred to in sub-clause
(a) shall not, save as expressly provided in this Constitution
or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State
c has also power to make laws .... "
7. Article 162 of the Constitution deals with the extent of
executive power of the State, which reads as follows:
"162 - Extent of executive power ·ot State
D
Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect
to which the Legislature of the State has power to make
laws:
E
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
the Constitution or by any law made by Parliament upon
F
the Union or authorities thereof."
8. Heard Mr. Goolam E. Vahanvati, learned Attorney
General of India for the petitioner-Union of India, Mr. Ram
Jethmalani, learned senior counsel and Mr. Yug Mohit
G Choudhary, learned counsel for Respondent Nos. 1-5 and 7 in
W.P. (Crl.) No. 48 of 2014 and Mr. Sanjay R. Hegde, learned
counsel for the petitioner in W.P. (Crl.) No. 105 of 2008 and
Respondent No. 6 in W.P. (Crl.) No. 48 of 2014 and Mr. Rakesh
Dwivedi, learned senior counsel for the State of Tamil Nadu.
H
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 735
[P. SATHASIVAM, CJI.]
Contentions of the Petitioner: A
9. At the outset, learned Attorney General appearing for ·
the Union of India submitted that what is proposed to be done
by the State of Tamil Nadu in exercise of power of remission
in the present case is illegal ahd without jurisdiction for the
B
following reasons:
a) The State Government is not the 'appropriate
Government' in the present case.
b) The State Government had no role to play in the c
present case at any stage.
c) Alternatively, without prejudice, the proposal by the
State Government is contrary to law, and does not
follow the procedure set out under the Code.
D
10. Learned Attorney G~neral pointed out that from a bare
reading of the definition of "appropriate Government" under
Section 432(7) of the Code reveals that in cases where the
sentence is for an offence against any law relating to a matter
to which the executive power of the Union extends, the E
"appropriate Government" in that respect would be the Central
Government. It is the stand of the Union of India that this
provision clearly gives primacy to the executive power of the
Union and excludes the executive power of the State where the
power of the Union is co-extensive. F
11. It is further pointed out that as per the proviso to Article
73, the executive power of the Union referred to in Article
73(1 )(a) shall not, save as expressly provided in the Constitution
or in any law made by the Parliament, extend in any State to
matters with respect to which the Legislature of the State also G
has power to make laws. It is argued that the proviso to Article
73 is excluded by Section 432(7) of the Code as it is only
applicable where there is no express provision to maintain the
executive power of the Union. Similarly, proviso to Article 162
of the Constitution limits the executive power of the State with H
736 SUPREME COURT REPORTS [2014] 5 S.C.R.
A respect to any matter where both the Legislature of the State
and the Parliament have power to make laws, where the
Constitution or any law has expressly conferred executive
power upon the Union. Thus, it was submitted that the proviso
contemplates that the executive power of the State may be
B overcome by the executive power of the Union through the
provisions of the Constitution or any other law made by the
Parliament. The Code is, therefore, one avenue through which
this may be done and has been exercised through Section
432(7) to give primacy to the executive power of the Union.
c Learned Attorney General further submitted that based on a
reading of Articles 73 and 162 read with . Section 432(7) of the
Code, the "appropriate Government" in the present case would
be the Central Government, as the Indian Penal Code falls
under the concurrent List, to which the executive power of the
Union also extends.
0
12. Learned Attorney General further pointed out that
Articles 73 and 162 must also be read subject to Article 254
of the Constitution, which gives primacy to the law made by the
Parliament. In this regard, reliance has been placed by learned
E Attorney General on the decision of this Court in S.R. Bommai
vs. Union of India, (1994) 3 sec 1 and he asserted that the
above decision completely displaces the stand of the State
Government with regard to the Concurrent List. Further, it was
submitted that it is·not possible to split up the Sections under
F which the conviction was made since it would lead to a
completely absurd situation where for some offences the
Central Government would be the appropriate Government, and
in respect of others, the State Government would be the
appropriate Government.
G
13. In any case, it is the stand of the Union of India that
...,since the State Government had consented for the case to be
investigated and prosecuted by the CBI via the consent order
dated 22.05.1991 under Section 6 of the Delhi Special Police
. Establishment Act, 1946, which was followed by the Central
H Gov~rn_ment Notification dated 23.05.1991, ensuing which the
·'
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 737
[P. SATHASIVAM, CJI.]
entire investigation of the case was handed over to the CBI, at A
this stage, the State cannot claim that it is the appropriate
Government. In this regard, the Union of India relied on the
observations of this Court in the case of Latu Prasad Yadav
vs. State of Bihar, (2010) 5 SCC 1.
B
14. Besides, the Union of India further submitted that the
State Government, without considering the meri~s and facts of
the case, hastily took a decision to remit the sentence and
release seven convicts which is contrary to the statutory
provisions and also to the law laid down by this Court. It is C
pointed out that application of mind has been held to be
necessary, which is entirely lacking in the present case. There
are no cogent reasons given in the letter dated 19.02.2014,
apart from the reliance on the judgment of this Court .
.15. In addition, it is the stand of the Union of India that the D
State Government could not have suo motu, without an
application, initiated the process of remitting the sentence and
releasing the convicts. In this regard, the Union of India relied
on the decision of this Court in Mohinder Singh vs. State of
Punjab, (2013) 3 SCC 294 wherein this Court held that the E
exercise of power under Section 432(1) of the Code cannot be
suo motu. It was further held as under:
"27. . . . . ... We are of the view that exercise of power by
the appropriate Government under sub-section (1) of
Section 432 of the Code cannot be suo motu for the simple F
reason that this is only an enabling provision and the same
would be possible subject to fulfilment of certain conditions.
Those conditions are mentioned either in the Jail Manual
or in statutory rules. This Court in various decisions has
held that the power of remission cannot be exercised G
arbitrarily. In other words, the decision to grant remission
has to be well informed, reasonable and fair to all
concerned ..... "
Thus, it was submitted that the law laid down in para 27 H
738 SUPREME COURT REPORTS [2014] 5 S.C.R.
A of Mohinder Singh (supra) cannot be sidelined by the State
Government.
16. Alternatively, it is submitted that assuming Section
435(2) of the Code is applicable, the use of the term
'consultation' under Section 435(1) of the Code should be
8
interpreted to mean 'concurrence'. Reference in this regard is
made to the judgment of this Court in State of Gujarat.vs. R.A.
Mehta, (2013) 3 sec 1, wherein it was held as under: ·
"32. However, in a situation where one of the consultees
C has primacy of opinion under the statute, either specifically
contained in a statutory provision, or by way of implication,
consultation may mean concurrence."
17. In addition to all the above submissions, learned
0 Attorney General formulated an alternative contention and
submitted that once the death sentence of a conwict has been
commuted into life imprisonment, the same has to be
interpreted to mean the entire life .of the convict and the
executive cannot exercise the power of remission of sentence
E thereafter. In this regard, reliance was placed ori Swamy
Shraddananda vs. State of Karnataka, (2008) 13 SCC 767
Contentions of Respondents:
18. In reply to the above submissions, Mr. Rakesh Dwivedi,
•
F learned senior counsel for the State of Tamil .Nadu suqmitted
that "appropriate Government" as defined in Sect!on 432(7) of
the Code is the State Government in the present case.
19. Learned senior counsel for the State submitted that the·
Central Government is the appropriate Governm(;'lnt where
G sentence is for an offence against any law relating to a matter
to which the executive power of the Union extends. Likewise,
Article 73 of the Constitution of India makes executive power
of the Union co-extensive with Parliament's law making power
and power relating to treaties/agreement. However, it is the
H stand of the State that the proviso stipulates that power referred
UNION OF !NOIA v. V. SRIHARAN @ MURUGAN 739
[P. SATHASIVAM, CJI.]
to in sub-clause (a) would not extend in any State to matters A
relating to the Concurrent List of the seventh Schedule of the
Constitution save where the Constitution or law of Parliament
expressly provides. This interpretation of the proviso to Article
73 corresponds with the reading of the proviso to Article 162.
It is the stand of the State of Tamil Nadu that Section 434 of 8
the Code is one such provision but it makes the Central
Government's power in cases of sentence of death concurrent
and not dominant. There is no ,other provision in Section 'E' of
Chaptei'"XXXll or otherwise of the Code which subordinates the
executive power of, the State in the Concurrent field of C
legislation to ·the executive power of the Union in matters of
remission, commutation, pardons etc.
· 20. Learned.senior counsel for the State pointed out that
Article 72(3) of the Constitution expressly saves the power of
the States under Article 161 and other laws to grant remission D
qr commutation of sentence of death from the impact of Article
72(1)(c) which confers power on the President qua all
sentences of death. On a plain reading of the executive power
of the .State !:J~der Article 162, the same being co-extensive with
the legislative power would extend to the concurrent field under E
List 11!.
21, Afternatively, Mr. Dwivedi submitted that Entry 1 of List
ill of the Seventh Schedule of the Constitution excludes offences
againstlaw with respect to matters in List I and List II. Indian F
Penal Code is mentioned in Entry 1 of List Ill. IPC involves
offences which relate to different subject matters, some of which
fall in List I and List 11. Mr. Dwivedi submitted that in G. V.
Ramanaiah vs. Stipt. Of Centr:al Jail, (1974) 3 SCC 531, since
the subject matter was related' to List I, the Central Government
wai:; ·.held to be appropriate Government. However, he G
highfighted that in State of MP. vs. Ratan Singh, (1976) 3 SCC
470 (paras 5 & 6), State of MP. v& Ajit Singh, (1976) 3 SCC
616. (para 2) and Government of A.P. vs. M. T. Khan, (2004)
1 sec 616 (para 10), it was held that the appropriate
H
740 SUPREME COURT REPORTS [2014] 5 .s.c.R.
A Government is the Government cif that State alone where the
conviction took place and not ·where the convict is detained.·
22. Learned senior counsel for the State also pofnted out
that while Section 55A(b) of IPC makes the State Government
the appropriate Government relating to matter to· which
8 executive power of the State extends, it is the Government of
that State within which the offender is sentenced and under
Section 432(7)(b) of the Code in cases other than those
mentioned in clause (a), the ~tate Governme.nt is the
appropriate Government. However, Section 432(7)(b) of the
C Code is wider than Section 55A(b) of IPC. It would cover·
matters in List Ill of the Seventh Schedule of the Constitution
too. Section 435(2) of the Code also is indicative of the above.
In a case like the present one, some offences may relate to
matters to which the executive power of the Union extends, whfle
D other offences may, in the same case and qua same person,
relate to matters to which the executive power of the State
extends. If in such cases, a person has been sentenced to
separate terms of imprisonment which are to run concurrently,
then unless an order has been made by the Central
E Government in relation to offences to which its ex~cutive power
extends, the order of the State Government would not be given
effect to. The Union could have referred to this provision if the
separate terms of sentences under the other Central Acts like
Passport Act, Foreigners Act, Explos'ives Act etc. were still
F operating and the sentences had not been already served out.
Learned senior counsel for the State submitted that in the
present case, all other sentences of 2-3 years have beeD fully
served out.
·23. It is further submitted by Mr. Dwivedi that public safety
G is part of public order generally unless it has the dimension of
Defence of India or National Security or War. It is followed from
the decision in Romesh Thapar vs. State of Madras AIR 1950
SC 124 (para 5) that the State Government of Tamil Nadu is
the appropriate Government to consider remission/commutation
H of sentence under Section 302 read with Section 1208 of IPC.
UNION OF INDIA v. V. SRIHARAN@ MURUGAN · 741
[P. SATHASIVAM, CJI.]
24. A's regards the violation of procedural requirements A
under Section 432(2), learned senior counsel for the State
submitted ..that it involves a procedure which applies only to
remi.ssion and suspension of sentence and not to cases of
.commutation as under Section 433. Besides, he asserted that
Section 432(2)·is applicable only when an application is moved B
on beha~f of the convict for obtaining remission or suspension
of sentence. It does- not apply _when the appropriate
Government exercises suo motu power. It was further submitted
'that the Parliament has thought it fit to confine application of
Sectign 432(2) to cases where an application is made c
becal)~e in s'uch cases the State has not applied its mind and
it may like to obtain the opinion of the Presiding Judge of the
Court which convicted and sentenced or the confirming court.
Hence, it is the stand of the State that the power under Section
432(1} is very wide and it can be exercised suo motu by the
0
appropriate Government. When the power is exercised suo
motu then Section 432(2) is not applicable.
2.5. Alternatively, Mr. Dwivedi submitted that Section 432(2)
is not mandatory. He elaborated that it uses the expression
"may require". Ordinarily, this expression involves conferment E
of discretion .and makes the provision directory. This procedure,
therefore, would apply where the Government feels the
necessity to require an opinion from the Presiding Judge of the
Court.,
F
26. As far as the compliance of Section 435 is concerned,
it is the· stand of the State of Tamil Nadu that it initiated the
process of consultation with the Central Government through the
impugned letter as the investigation of the given case was done
by the CBI. It is further submitted that it is consultation between G
two plenary Governments constituted under a Federal structure
and the State of Tamil Ncidu intends to engage in meaningful
and effective consultation wherein the views expressed by the
Central Governm€lnt during the consultation process will
certainty be given du-e consideration. However, it is the stand H
742 SUPREME COURT REPORTS [2014] 5 S.C.R.
A of the State that consultation does not mean concurrence since
the power of the State is a plenary power and States are not
subordinate to the Central Government.
27. Thus, Mr. Dwivedi concluded by stating that the
expression used in Section 435(1) is "except after consultation".
8
The Parliament has deliberately not chosen the word
"concurrence" as such interpretation would amount to depriving
the State Government of its discretion. He pointe.d out the
following cases wherein it has been held that consultation does
not mean concurrence:
c
1. State of UP. vs. Rakesh Kumar Keshari, (2011)
5 sec 341 (para 33)
2. L & T McNeil Ltd. vs. Government of Tamil Nadu
o •
2001 (3) SCC 170 (paras 41, 61)
3. State of UP. & Anr. vs. Johri Mal, 2003(4) SCC
714 (para 55)
4. Justice Chandrashekaraiah vs. Janekere C.
E Kris,hna, (2013) 3 SCC 117 (paras 134-138, 144,
153c155).
28. With regard to the contention of the Union of India that
once the power of commutation/remission has been exercised
F in a particular case of a convict by a Constitutional forum
particularly, this Court, then there cannot be a further exercise
of the Executive Power for the purpose of commuting/remitting
the sentence of the said convict in the same case, Mr. Dwivedi
submitted that the said contention is unacceptable since in this
G case this Court had exercised the judicial power of commuting
the death sentence into life imprisonment by judgment dated
18.02.2014. This Court was not exercising any executive power
under the Constitution or under the Code. It was exercising its
judicial power in the context of breach of Article 21. There is
no principle of law put forward to support this submission and
H the contention has been floated as if it is an axiom. The
UNION OF INDIA v. V, SRIHARAN@ MURUGAN 743
[P. SATHASIVAM, CJI.]
submission of the Union of India, if accepted, would have A
horre"ndous consequences. A convict whose death sentence
has been commuted to life imprisonment by this Court on
account of breach of Article 21 would have to remain
imprisoned necessarily till ·the end of his life even if he has
served 01,Jt 30-50 years of sentence and has become old B
beyond 75 years or may be terminally ill yet there would be no
·power to remit/commute.
29. Besides, it is the stand of the State that when this Court
commuted the death sentence into life imprisonment, it did not
bar and bolt any further exercise of commutation/remission C
power by the Executive under the Constitution or under the
Code. In fact, it expressly envisaged subsequent exercise qf
remission power by the appropriate Government under Section
432 subject to. procedural checks and Section 433A of the
Code. D
30. Mr. Dwivedi, further pointed out that even in the
absence of such an observation in para 31 of the decision of
this Court in V. Sriharan @ Murugan (supra) the legal position
would remain the same as this Court does not prevent the E
exercise of any available power under the Constitution and the
statute. In fact it has been laid down in Supreme Court Bar
Association vs. UOI, (1998) 4 SCC 409 and Manohar Lal
Sharma vs. Principal Secretary, (2014) 2 SCC 532 that even
the power under Article 142 cannot be exercised against the
F
statute much less the Constitution. Hence, according to him,
the State Government is the appropriate Government.
31. Mr. Ram Jethmalani, learned senior counsel for
Respondent Nos. 1 to 5 and 7 adopted similar arguments and
emphasized on the meaning of consultation. He extensively G
referred to First Judges' case, viz., S.P. Gupta vs. Union of
India, (1981) Supp SCC 87 (a seven-judge bench judgment)
and heavily relied on para 30 of the judgment:
"~O ........ But, while .giving the fullest meaning and effect H
744 SUPREME COURT REPORTS [2014! 5 S.C.R.
A to "consultation", it must be borne in mind that it is only
consultation which is provided by way of fett.er upon the
power of appointment vested in the Central Government
and consultation cannot be equated with concurrence. We
agree with what Krishna Iyer, J. said in Sankalchand Sheth
8 case (Union of India vs. Sankalchand Himmatlal Sheth,
(1977) 4 sec 193: 1977 sec (L&S) 435; (1978) 1 scR
423: AIR 1977 C 2328) that "consultation is different from
consentaneity."
According to him, consultation does not mean concurrence
C though the process of consultation involves consideration of
both - the entity seeking consultation and the consultee of the
same. He further pointed out that the dominant object of the
statute coupled with use of compelling words may in some
cases involve a different meaning ..As, for example, it happened
D in the Supreme Court Advocates-on-Record Association vs.
Union of India, (1993) 4 SCC 441, also known as the 2nd
Judges' Case. In this judgment, on the facts and the language
used as well as on consideration of the controlling Article 50
of the Cons~itution mandating the separation of the judiciary
E from the executive, this Court held that in the process of
consultation, the opinion of the Chief Justice has primacy. No
such compelling context leading to departure from the natural
meaning of the word 'consultation' exists in Section 435(1) of
the Code. In the above-mentioned case, the following may be
F considered as the ratio:
"438. The debate on primacy is intended to determine
who amongst the constitutional functionaries involved in the
integrated process of appointments is best equipped to
discharge the greater burden attached to the role of
G primacy, of making the proper choice; and this debate is
not to determine who between them is entitled to greater
importance or is to take the winner's prize at the end of
the debate. The task before us has to be performed with
this perception.
H
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 745
[P. SATHASIVAM, CJI.]
441. For this reason, it must be seen who is best equipped A
and likely to be more correct in his view for achieving the
purpose and performing the task satisfactorily. In other
words, primacy should be in him who qualifies to be
treated as the 'expert' in the field. Comparatively greater
weight to his opinion may then be attached." B
32. It is the submission of learned senior counsel that even
from this perspective, the view of the State Government on a
question of remission which involves knowledge of the
prisoner's conduct whilst in jail, his usefulness to co-prisoners C
needing his help and assistance, the manner in which he has
employed his time in jail, his psychiatric condition, and family
connections are more known to the State Government rather
than the Union Government. These circumstances conclusively
call for primacy to the finding and decision/opinion of the State
Government. D
33. In support of his claim that grant of remission is a State
subject, Mr. Jethmalani relied on Entry 4 of List II, State List,
which reads as under:
E
"Prisons, reformatories, borstal institutions and other
institutions of a like nature, and persons detained therein;
arrangements with other states for the use of prisons and
other institutions."
Section 59 of the Prisons Act, 1894 specifically empowers F
the State Government to make rules on the following:
"(5) For the award of marks and shortening of sentences;
(21) For rewards for good conduct; ...
G
(27) In regard to the admission, custody, employment,
dieting, treatment and release of prisoners."
This clearly shows that granting of remission for good
· conduct and determination of premature release is exclusively H
746 SUPREME COURT REPORTS [2014] 5 S.C.R.
A within the domain of the State Government and falls squarely
within Entry 4, List II.
34. Mr. Jethmalani further elaborated that the correctness
of the closing paragraph of judgment dated 18.02.2014 is:
8 further evidenced by the fact that a Constitution Bench of this
Court in Bhagirath vs. Delhi Administration, (1985) 2 SCC 580
para 17 had employed the same formulation in its closing
paragraph while disposing of the petition seeking the benefit
of Section 428 of the Code for life convicts. The Court had
stated as follows:-
C
"17. For these reasons, we allow the appeal and the writ
petition and direct that the period of detention undergone
by the two accused before us as undertrial prisoners shall
be set off against the sentence of life imprisonment
D imposed upon them subject to the provision contained in
Section 433A and provided that orders have been passed
by the appropriate authority under Section 432 or 433 of
the Cr.P.C (emphasis added)
E 35. Mr. Jethmalani has also pressed into service the
.revised Guidelines on Remission by the National Human Rights
Commission which reads as under:-
"4. Inability for Premature Release
F Deleted in view of new para 3."
New para 3 in the revised guidelines is as follows:
"3 .... Section 433(A) enacted to deny pre-mature release
before completion of 14 years of actual incarceration to
G s'Uch convicts as stand convicted of a capital offence. The
commission is of the view that within this category a
. reasonable classification can be made on the basis of the
magnitude, brutality and the gravity of offence for which the
convict was sentenced to life imprisonment. Certain
H categories of convicted prisoners undergoing life
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 747
[P. SATHASIVAM, CJI.]
sentence would be entitled to be considered for pre- A
mature release only after undergoing imprisonment
for 20 years including remissions. The period of
incarceration inclusive of remissions in such cases should
not exceed 25 years. Following categories are mentioned
in this connection by way of illustration and are not to be B
taken as an exhaustive list of such categories.
a. Convicts who have been imprisoned for life for murder
in heinous cases such as murder with rape, murder with
dacoity, murder involving an offence under the Protection C
of Civil Rights Act, 1955, murder for dowry, murder of a
child below 14 years of age, multiple murders, murder
committed after conviction while inside the jail, murder
during parole, murder in a terrorist incident, murder in
smuggling operation, murder of a public servant on duty.
D
b. Gangsters, contract killers, smugglers, drug traffickers,
racketeers awarded life imprisonment for committing
murders as also the perpetrators of murder committed
with pre-meditation and with exceptional violence or
perversity. E
c. Convicts whose death sentence has been commuted to
life imprisonment."
Finally, he concluded by asserting that the State
Government is the appropriate Government for granting of F
remission. Consequently, the proposal for release of
Respondent Nos. 1 to 7 had been duly considered in
accordance with law.
Discussion: ·G
36. We have carefully considered the rival contentions,
examined the relevant Constitutional provisions alongside the
apposite provisions in the Code. The issues raised in this case
revolve around the exercise of power of remission by the
appropriate Government. The commutation of death penalty to H
748 SUPREME COURT REPORTS [2014] 5 S.C.R.
A life imprisonment can befall at two stages: firstly, when the
appellate Court deems it fit to commute the death sentence to
life imprisonment; and secondly, when the executive exercises
its remission power under Article 72 by the President or under
Article 161 by the Governor or under Article 32 by this Court in
B its judicial review jurisdiction.
37. The primary question that arises for consideration at
this juncture is whether in the first scenario specified above, the
Court has the power to substitute the death penalty for
C imprisonment for life (meaning until end of life) and put this
category beyond the application of remission. Learned counsel
for both the petitioner and the respondents submitted divergent
views on this subject relying on judicial precedents of this Court.
38. Learned Attorney General referred to the three-Judges
D Bench decision of this Court in Swamy Shraddananda (supra)
to state that life imprisonment imposed on commutation of
death penalty will mean till end of life and, thus, beyond the
.exercise of power of remission. Accordingly, it is the stand of
the Union of India that Respondent Nos. 4 to 7 cannot be
E granted remission as it is done in the given case.
39. In Swamy Shraddananda (supra), the conviction of the
appellant - Swamy Shraddananda under Sections 302 and
201 IPC had attained finality. The Trial Court sentenced him to
F death for the offence of murder. The appellant's appeal and the
reference made by the Sessions Judge were heard together
by the Karnataka High Court. The High Court confirmed the
conviction and the death sentence awarded to the appellant and
by judgment and order dated 19.09.2005 dismissed the
appellant's appeal and accepted the reference made by the
G Trial Court without any modification in the conviction or
sentence. Against the High Court's judgment, the appellant had
come to this Court. In view of conflicting views by two Judges
of this Court, the matter was referred to three-Judges' Bench.
After considering all factual details and various earlier
H decisions, this Court held that there is a good and strong basis
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 749
[P. SATHASIVAM, CJI.]
for the Court to substitute the death sentence by life A
imprisonment and directed that the convict shall not be
released from prison for the rest of his life. While considering
the said issue, this Court adverted to various decisions granting
remission reducing the period of sentence in those cases in
which life sentence was awarded in lieu of death sentence. This B
Court in paras 91 to 93 held as under:
"91. The legal position as enunciated in Pandit Kishori Lal,
Gopal Vinayak Godse, Maru Ram, Ratan Singh and Shri
Bhagwan and the unsound way in which remission is C
actually allowed in cases of life imprisonment make out a
very strong case to make a special category for the very
few cases where the death penalty might be substituted
by the punishment of imprisonment for life or imprisonment
for a term in excess of fourteen years and to put that
category beyond the application of remission. D
92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A
sentence may be excessive and unduly harsh or it may be
highly disproportionately inadequate. When an appellant E
comes to this Court carrying a death sentence awarded
by the trial court and confirmed by the High Court, this
Court may find, as in the present appeal, that the case just
falls short of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence. But F
at the same time, having regard to the nature of the crime,
the Court may strongly feel that a sentence of life
imprisonment subject to remission normally works out to
a term of 14 years would be grossly disproportionate and
inadequate. What then should the Court do? If the Court's G
option is limited only to two punishments, one a sentence
of imprisonment, for. all intents and purposes, of not more
than 14 years and the other death, the Court may feel
tempted and find itself nudged into endorsing the death
penalty. Such a course would indeed be disastrous. A far H
750 SUPREME COURT REPORTS [2014] 5 S.C.R.
A more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years' imprisonment and death. H needs to be
emphasised that the Court would take recourse to the
B expanded option primarily because in the facts of the case,
the sentence of 14 years' imprisonment would amount to
no punishment at all.
93. Further, the formalisation of a special category of
sentence, though for an extremely few number of cases,
c shall have the great advantage of having the death penalty
on the statute book but to actually use it as little as
possible, really in the rarest of rare cases. This would only
be a reassertion of the Constitution Bench decision in
Bachan Singh besides being in accord with the moden:i
D trends in penology."
40. Relying on the aforesaid decision of the larger Bench,
learned Attorney General submitted that it is perfectly legal ~o.
commute the death penalty into imprisonment for life (to mean
E the entire life of the convict) and deprive of remission in certain
cases. As a consequence, the exercise of power of remission
under Section 432 of the Code by the State of Tamil Nadu in
the case of Respondent Nos. 4 to 7 is impermissible.
41. Whereas it is the stand of learned senior counsel for
F the State that the authority to exercise the power of remission
even in such special category of cases still vests with the
appropriate Government, relying on the Constitu~ion Bench
decision in Bhagirath (supra), Mohinder Singh (supra) and
various other case-laws. Moreover, it was asserted by learned
G senior counsel appearing for the State of Tamil Nadu that the
statutory power of remission granted to the appropriate
Government under Section 432 of the Code cannot be taken
away only in certain cases by way of judicial pronouncement.
H 42. Having given our most anxious consideration, we are
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 751
[P. SATHASIVAM, CJI.]
of the opinion that it will not be appropriate for a three Judges' A
Bench to examine and decide the correctness of the verdict of
another three-Judges' Bench in Swamy Shraddananda (supra).
Besides, inevitability the decision of the Constitution Bench in
Bhagirath (supra) would also be required to be examined. Thus,
we deem it fit to refer this matter to a five Judges' Bench to B
·reconcile the dispute emerged.
43. The second stage is when the executive exercises its
rem'ission power under Article 72 by the President or under
Article 161 by the Governor or under Article 32 by this Court in
its judicial review jurisdiction and the commutation of death C
penalty into life imprisonment is permitted. It is the stand of the
petitioner, i.e., Union of India that once death penalty is
commuted into life imprisonment by exercise of executive power
.under Article 72/161 of the Constitution or by the judicial power
vested by the Constitution in Article 32, the categories are D
b'eyond the power of remission and parallel exercise of the
similar power by the executive under the Code is impermissible.
Therefore, on this ground, the learned Attorney General for the
Union of India contended that granting of remission to
f3espondent Nos. 1 to 3 & 7 is untenable in law. A1though, the E
Attorney General heavily relied on this proposition to put forth
his case but did not place any substantial material for
examination by this Court.
44. Learned counsel for the State countered this F
proposition of the petitioner by stating that there is no material
on record to validate the same, hence, remission granted to
Respondent No. 7 is valid in law. It was further contended that
the commutation of death sentence into life imprisonment in
case of Respondent Nos. 1 to 3 by this Court was not by G
exercising any executive power under the Constitution or under
the Code, but it was in exercise of its judicial power in the
context of breach qf Article 21. In other words, according to him,
even after this Court commuted the death sentence to life
imprisonment, it did not bar and bolt any further exercise of H
752 SUPREME COURT REPORTS [2014] 5 S.C.R.
A commutation/remission power by the executive under the
Constitution or under the Code.
45. The issue of such a nature has been raised for the first
time in this Court, which has wide ramification in determining
B the scope of application of power of remission by the executives
both the Centre and the State. Accordingly, we refer this matter
to the Constitution Bench to decide the issue pertaining to
whether once power of remission under Article 72 or 161 or
by this Court exercising Constitutional power under Article 32
is exercised, is there any scope for further consideration for
C remission by the executive.
46. Inasmuch as the issue vis-a-vis who is the 'appropriate
Government' under Section 432(7) of the Code to exercise the
power of remission is concerned, elaborate arguments had
D been advanced by both sides in the course of the proceedings
and the parties raised more than one ancillary questions to the
main issue like which Government - the State or the Centre will
have primacy over the subject matter enlisted in List II! of the
Seventh Schedule of the Constitution of India for exercise of
E power of remission. Another question was also raised whether.
there can be two appropriate Governments in one case. In
addition, whether the term "consultation" means "concurrence"
under Section 435(1) of the Code: Since the questions in the
given case are contingent on the final decision to be arrived at
F in the first issue, we unanimously deem it appropriate that
these issues be decided by the Constitution Bench. Moreover,
'considering the wider interpretation of the provisions of the
Constitution and the Code involved in the matter, we consider
it fit to refer the matter to the Constitution Bench for an
G authoritative interpretation on the same. In fact, such a course
of action is mandated by the provisions of Article 145(3) of the
Constitution.
47. Before framing the questions to be decided by the
Constitution Bench in Writ Petition (Crl.) No. 48 of 2014, we
H intend to dispose of other matters. Since in Writ Petition (Crl.)
UNION OF INDIA v. V. SRIHARAN @ MURUGAN 753
[P. SATHASIVAM, CJI.]
No. 105 of 2008, the petitioner is one of the respondents A
(Respondent No. 6) in Writ Petition (Crl.) No. 48 of 2014 and
Mr. Sanjay R. Hegde, learned counsel for the petitioner is not
pressing the same, the Writ Petition (Crl.) No. 105 of 2008 is
dismissed as not pressed. Likewise, there is no need to keep
the Criminal Misc. Petitions pending, as the Union of India filed B
the substantive petition in the form of Writ Petition (Crl.) No. 48
of 2014 giving all the details. Accordingly, Crl. M.P. Nos. 4622,
4623 and 4624 of 2014 in T.C.(Crl.) Nos. 1, 2 and 3 of 2012
respectively are dismissed.
48. The following questions are framed for the
c
consideration of the Constitution Bench:
(i) ·Whether imprisonment for life in terms of Section
53 read with Section 45 of the Indian Penal Code
meant imprisonment for rest of the life of the D
prisoner or a convict undergoing life imprisonment
has a right to claim remission and whether as per
the principles enunciated in paras 91 to 93 of
Sw?mY Shraddananda (supra), a special category
of sentence may be made for the very few cases E
where the death penalty might be substituted by the
punishment of imprisonment for life or imprisonment
for a term in excess of fourteen years and to put that
category beyond application of remission?
F
(i~ Whether the "appropriate Government" is permitted
to exercise the power of remission under Section
432/433 of the Code after the parallel power has
been exercised by the President under Article 72
or the Governor under Article 161 or by this Court
in its Constitutional power under Article 32 as in this G
case?
(iii) Whether Section 432(7) of the Code clearly gives
primacy to the executive power of the Union and
excludes the executive power of the State where H
754 SUPREME COURT REPORTS [2014] 5 S.C.R.
A the power of Union is co-extensive?
(iv) Whether the Union or the State has primacy over
the subject· matter enlisted in List Ill of Seventh
Schedule of the Constitution of India for exercise of
power of remission?
B
(v) Whether there can be two appropriate
Governments in a given case under Section 432(7)
of the Code?
c (vi) Whether suo motu exercise of power of remission
under Section 432(1) is permissible in the scheme
of the section if, yes whether the procedure
prescribed in sub-clause (2) of the same Section
is mandatory or not?
D (vii) Whether the term "consultation" stipulated in
Section 435(1) of the Code implies "concurrence"?
49. All the issues raised in the given case are of utmost
critical concern for the whole of the country, as the decision on
E these issues will determine the procedure for awarding
sentences in the criminal justice system. Accordingly, we direct
to list Wrjt Petition (Crl.) No. 48 of 2014 before the Constitution
Bench as early as possible preferably within a period of three
months.
F
50. All the interim orders granted earlier will continue till
final decision being taking by the Constitution Bench in Writ
Petition (Crl.) No.48 of 2014.
Rajendra Prasad Matter referred to Constitution Bench.
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