A Two Judge Bench of the Supreme Court Today has held that a writ of Mandamus can be issued to authorities to grant remission. The Bench of Justices Dipak Misra and Shiva Kirti Singh has dismissed a writ petition preferred under Article 32 of Constitution of India, by the petitioners, who have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in default of payment of fine, to suffer further rigorous imprisonment for six months, praying for issue of writ of mandamus to the authorities commanding them to grant remission to them as per the provisions contained in Chapter XIX of the New Punjab Jail Manual, 1996.
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 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 Dadu @ Tulsidas v. State of Maharashtra. It is contended by the learned counsel for the petitioners that in Maru Ram v. Union of India and others , the constitutional validity of Section 433-A of Code of Criminal Procedure, 1973 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 the Court can remit the sentence and the said power cannot be curtailed by any legislation.
The Government of Punjab, Department of Home Affairs and Justice through Governor has issued an order in exercise of powers conferred by Section 432 of CrPC and Article 161 of the Constitution of India on 13th 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 Foreigners Act, 1946 and the Passport Act, 1967 and the Narcotic Drugs and Psychotropic Substances Act, 1985.
Constitutional power exercised under Articles 72 and 161 is quite different than the power exercised under a statute.
The Court has accepted the argument that Constitutional power exercised under Articles 72 and 161 is quite different than the power exercised under a statute. What is being urged before the Court 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 of India.. The Court held that;
“Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights. Moving the Supreme Court for the said purpose is fundamental . The recent Constitution Bench decision in V. Sriharan has clearly opined that the constitutional power engrafted under Articles 72 and 161 are different than the statutory power 18 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. That is in a different domain”.
The Court has then considered the issue whether a writ of mandamus can be issued to authorities to grant remission to the petitioners. Answering the question in the negative, the Court held as follows:
“The present 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 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 or where the Court takes up certain grievance which falls in the realm of public interest litigation. Therefore, we repel the submission on the said score. It has also been argued that this Court can issue a direction to do complete justice to grant remission.
Read the Judgment here.