State should have the final say in whether or not remission should be granted; Tamil Nadu Submits to the Constitution Bench hearing Union of India v. Sriharan [Day-6]

(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. Sriharan)[We would like to thank Dr.Anup Surendranath and Centre on the Death Penalty at National Law University, Delhi for this initiative. We also would like to thank the Law and Other Things Blog where it is first published.]The arguments today (4th August 2015) were continued by the State of Tamil Nadu through Mr. Rakesh Dwivedi, Senior Advocate. The Solicitor General had on 30.7.2015 concluded his arguments and Mr. Dwivedi had started addressing some of the questions referred to the Constitution bench.Mr. Dwivedi addressed arguments on the issue of “consultation” which was question no. 7 in the order of reference to the constitution bench. He argued that “consultation” was an ongoing process and not merely a one-time action. He submitted that the legislature in the CrPC had knowingly used the term “consultation” as opposed to “concurrence”. He placed the judgment of S.R. Bommai v. Union of India before the court to support his contention that federalism was considered a basic feature of the Constitution and States were not subordinate entities in the federal structure. He therefore submitted that the State government consulting with the Central Government could not be read to be a surrender of power by the States to the Centre.He argued that notwithstanding the fact that the Centre has a wide power in the federalist scheme, once it is held that a particular activity is within the domain of the State’s power, then the Centre cannot act on it. He submitted that since, in the present case, there was no conviction under TADA, consultation was felt necessary by the State of Tamil Nadu only because it was an issue which was vital to the Centre. He beseeched the court to not take away the powers of the state by interpretation but rather to let legislative processes operate by means of legislations or ordinances. He submitted that if the Centre did indeed want to exercise power which was with the States, they would be free to use legislative means to try to achieve this. He submitted that states (Provinces as they were earlier) were important units in the federalist set-up and their judgment was usually deferred to as they are believed to be better aware of ground realities relating to exercise of executive power.Mr. Dwivedi submitted that the question of whether or not remission should be granted or not was a function of factors such as the conduct of the prisoner, whether the prisoner had shown signs of reformation etc. and not which government was the appropriate government. He countered the submission of the Solicitor General who had stated that since the CBI had conducted the investigation, all the relevant material would be with CBI, by stating that since the power in this case vested with the State Government, it was obligatory for the CBI to make this material available to the State rather than the Centre appropriating the powers of remission. He further submitted that since the prisoners in this case were incarcerated in Tamil Nadu, material relating to their reformation and conduct in jail would be available with the State Government, and hence the State should have the final say in whether or not remission should be granted.Mr. Dwivedi further submitted that the reformative aspect of punishment assumes greater significance when a longer period of imprisonment has been served rather than other penological objectives such as retribution or deterrence. He submitted that in the present case, there were three significant events which had led to changed circumstances which warranted a re-look at the case of the prisoners in the Rajiv Gandhi murder case. Firstly, the death sentence had been commuted to life by the Supreme Court, secondly, the LTTE as an outfit had been considerably weakened if not destroyed, and thirdly, that for over 10 years the government to which Rajiv Gandhi had belonged had been in power and had chosen to take no steps for the execution of the prisoners and therefore now that a different party is in power at the Centre, attitudes towards this case may have changed. He submitted that by taking away the power of granting remissions, there would be a transgression of rights of the prisoners under Art. 72and Art. 161 and recognizes the prisoner’s fundamental right to be considered for parole/remission/suspension or commutation. He further submitted that these rights are recognized in international law.Mr. Dwivedi thereafter addressed arguments on the issue of “appropriate government”He submitted that the State Government would be the sole executive power and in order for the Central Government to take over this executive power, it would be firstly necessary for the Central Government to enact a law and secondly, in this law, expressly state that this power has been taken over. For this he drew on the proviso to Article...

State should have the final say in whether or not remission should be granted; Tamil Nadu Submits to the Constitution Bench hearing Union of India v. Sriharan [Day-6]

Nishant Gokhale

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