The Constitution Bench of Supreme Court reserved its verdict in Union of India v Sriharan where in Supreme Court has considered the following main questions referred by a Three Judge bench
The following questions are framed for the 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 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 Swamy Shraddananda (supra), a special category of sentence may be made 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 application of remission?
(ii) 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 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 the power of Union is co-extensive?
(iv) Whether the Union or the State has primacy over the subject matter enlisted in List III of Seventh Schedule of the Constitution of India for exercise of power of remission?
(v) Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?
(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?
(vii) Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”?
This issues had arisen when the Tamil Nadu Government's decided to set free the convicts in the Rajiv Gandhi assassination case. Five-judge Constitution bench headed by Chief Justice H L Dattu and Justices F M I Kalifulla, Pinaki Chandra Ghosh, Abhay Manohar Sapre and U U Lalit, heard the matter which was referred to it by a three judges bench, for eleven days. Solicitor General Ranjit Kumar, had appeared for the Centre, Senior Advocate Ram Jethmalani and Rakesh Dwivedi, appeared for V Sriharan, one of the seven convicts, and Tamil Nadu government respectively.
Live Law had covered the hearing of this case extensively which may be read here. Constitution bench is hearing the matter since 8th July, During the course of Arguments, Tamil Nadu Government had submitted that States should have the final say in whether or not remission should be granted. The SG, on behalf of Central Government had informed the court that the Supreme Court in a few cases had directed that the that life imprisonment be given without remission, or had fixed a period of life imprisonment between 35-25 years imprisonment or even directed that the period of remission would not start until a certain amount of time had been spent in jail.
The smaller bench of the Apex Court, while referring the matter to Constitutional bench had said that “The 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. Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72(by the President) or 161 (by Governor)or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive".
Seven persons were convicted for their role in the assassination of former Prime Minister Rajiv Gandhi in May 1991. Three of them were on death row and had their sentences commuted to life sentence. Tamil Nadu invoking its remission powers under section 432, 433 and 435 of the criminal procedure code had written to the centre about its proposal to release seven convicts in the case. Later Supreme Court had stayed this decision and had directed the state to maintain status quo.