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 162 and 432(7)(b). He submitted that under Article 162, the power of the State extended to all areas where the States were competent to enact laws except where the Centre had specifically in the constitution or by law made by parliament been conferred this power. Under section 432 also, the scheme appeared to be one where except where provided for in some instances, the States would have the power to suspend or remit sentences.
He submitted that as held in the case of G.V. Ramaniah v. Superintendent, Central Jail, that although IPC was enacted under Entry 1 of List III of the VIIth Schedule, it was an aggregation of a variety of offences, some of which wherein List I and some in List II. He submitted that while for some offences, such as those relating to coinage, it would be easy to identify which List of Schedule VII they would fall in, offences such as murder would be harder to classify. He submitted that it would have to be determined whether the offence of murder was one of murder simplicitor or murder which affected public order.
He submitted that 55-A IPC- which was sought to be deleted by Law Commission, but retained by Parliament, also defines who the appropriate government is. He also submitted that under section 434 CrPC, it has been expressly stated that in cases where death sentence is awarded, the power can “also be exercised by the Central Government”. He argued that despite a number of cases where there was a dispute inter se State Governments as to which state should exercise the powers of remission, the Central Government did not interfere or even raise an issue about the extent of its powers.
He thereafter relied upon the Constituent Assembly Debates to explain the debate on Article 72 as it stands now. He further relied upon the writings of Mr. HM Seervai on the issue.
He thereafter relied on a number of cases to show how where the powers vests with both the Centre and States as per Schedule VII of the Constitution, the Centre would have to make an express declaration of the State’s power which it was taking over, the should specify the extent of the take over of the State’s power and also be construed strictly. He therefore submitted that every time the Centre exercised power over something that was ordinarily a State subject, it would be a whittling down of the State’s power and therefore would have to be read strictly. To emphasize this point, he inter alia placed the judgments of Monnet Ispat and Ishwari Khetan before the court.
The Bench raised a query as to what would happen in the present case as some of the prisoners were foreign nationals, were convicted under legislations dealing with arms and explosives. Mr. Dwivedi responded by stating that while no doubt these topics were part of the Union List, all the prisoners had already served out their terms for their convictions under these offences. He further submitted in response to the Bench’s query that while Entry 8 of List I spoke about the CBI, reading it with Entry 93 of List I would only cover offences against the CBI and not investigation carried out by it.
He thereafter commenced to address the court on the second question referred to the Constitution bench. He submitted that there ought not be any bar on exercise of powers again, even if they had been already exercised. To this, the bench responded that it may lead to a situation where the court would have to entertain a prisoner under the sentence of death, not just till the time his legal remedies were exhausted, but actually until the prisoner himself was exhausted of availing judicial remedies. Mr. Dwivedi submitted that he would address the court on this issue at a subsequent time. He further submitted that it was possible as in the present case where a different power was sought to be exercised. In the present case, the power previously sought to be exercised was one of commutation and now the power sought to be exercised was one of remission.
[The report of the arguments presented on 22nd July 2015 is by Nishant Gokhale. Nishant graduated from NUJS Kolkata in 2011 and joined the Death Penalty Litigation Clinic at NLU Delhi in April 2015]