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

(The Centre on the Death Penalty at National Law University, Delhi will be posting daily reports of the arguments in the Constitution Bench matter in Union of India v. SriharanThe matter was taken up today (12.8.2015) at 2 p.m., when Mr. Ranjit Kumar, the Solicitor General (SG) continued his arguments in reply to the arguments of the Respondents.The SG argued that under the proviso to Article 73, the executive powers of the union extended to matters under the concurrent list where the same was expressly provided in the Constitution or in any law made by parliament.Scope of Powers of State Government Restricted under section 432(2)The SG argued that section 432(7) CrPC expressly conferred greater powers on the union for matters under sections 432 and 433 CrPC. Section 432(7) defined appropriate government for the purposes of sections 432 and 433 CrPC, as is evident from the opening lines of the sub-section. He drew attention to section 55A IPC which defined appropriate government for the purposes of sections 54 and 55 IPC. He then contended that as per section 2(y) CrPC, words not defined under CrPC would have the same meaning as assigned to them under IPC. Therefore, if the legislature had wanted ‘appropriate government’ defined under 432(7) CrPC to have the same meaning assigned to the term under section 55A IPC, there was no need to explicitly define ‘appropriate government’ under the CrPC. The conclusion he therefore sought to draw, was that the legislature sought to give a more restricted scope to the powers of the state government for the purposes of sections 432 and 433 CrPC. He drew attention to a number of different legislations under which ‘appropriate government’ was defined differently, and in many the scope of powers of the state government were more restricted, including the Contract Labour (Regulation and Abolition) Act, 1970, the Minimum Wages Act, 1948, etc.Justice UU Lalit put forth the proposition that the meaning of appropriate government, and more specifically the powers of the state government, were no more restricted under section 432(7) CrPC than under section 55A IPC. According to him, the two sections employed two different ways of doing the same thing. While section 55A IPC defined the spheres of both the central government and the state government, section 432(7) CrPC defined the sphere of the central government, and left the residue for the state government. He explained, if there are 10 apples to be divided among two persons, one way of dividing the apples is to say five are to be given to one person and five to the other. Another way of dividing the apples is to say five are to be given to one person, and the remaining to the other. Ultimately, the consequence of both is the same.Scope of Executive Powers of the State Government restricted under certain provisions of the ConstitutionThe SG drew attention to Articles 256, 257 and 258 of the Constitution of India and argued that these expressly conferred executive powers on the union even with respect to matters in the concurrent list, and thereby restricted the sphere of powers of the states with respect to these matters. However, Justice UU Lalit put forth the proposition that these Articles did not expressly confer executive powers on the Union, and merely required the states to exercise their executive powers in a manner that did not impede or prejudice the exercise of executive powers of the union. He contrasted these provisions with Article 260, under which there was express conferment of executive power on the union.India has a more Unitary than Federal StructureThe SG drew upon a list of cases to contend that the Indian State was more unitary than federal in structure. He used this argument to buttress his main point, that it is the union that has primacy in the field of suspension and remission of sentences under the CrPC.In State of Rajasthan v. Union of India (Supreme Court, 1977) Chief Justice MH Beg had held: “A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.” He further held that the Central Government is “amphibian”, in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and circumstances of a case.Similarly, in State of Karnataka v. Union of India (Supreme Court, 1977), a case relating to the powers of the Central Government to set up a Commission of Enquiry under the Commission of Enquiry Act, 1952 against the Chief Minister of Karnataka, Chief Justice MH Beg saw no reason to read down the powers of the Central Government to appoint a Commission of Enquiry against a Chief Minister. However, it must be noted that under the Commission of Enquiry Act, 1952 the Central Government is the...

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

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