There should not be a sentence imposed which foreclosed the options of Remission and Commutation; Andhyarujina [Sriharan-Summary of Arguments;Day-8]

(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 (6.8.2015) continued with Mr. Rakesh Dwivedi, Senior Advocate arguing for the State of Tamil Nadu.The Bench was considering alternatives on how sentencing could be carried out so that as stated in Swamy Shraddananda’s case it was neither too less nor too harsh. Mr Dwivedi submitted that paragraph 91 of Swamy Shraddananda’s case (paragraph 67 of hyperlink) required the Court to consider if a separate category of “sentence” could be awarded in some cases. He submitted that this judgment was in the context of where life imprisonment was being awarded in lieu of the death sentence. He submitted that therefore while creation of a new sentence would be within the legislative domain, it would be open to the court to only award the sentences prescribed by law and that these sentences would necessarily be subject to provisions under the CrPC and Constitution of India. He submitted that any sentence which deprived the convict of the possibility of remission would severely prejudice the convict.The Bench however questioned as to why this would prejudice the convict as in many cases, the court was giving a sentence lesser than death which was the maximum penalty in law. He submitted that putting the sentence beyond the pale of remission would deprive the prisoners of their right to be considered for remission which presented “a ray of hope” for the prisoner. To this, the Bench suggested that they could think of passing a sentence where the matter could after a period of about 20 years come back to them to determine whether or not remission should be made applicable.In exploring further alternatives, the Bench looked at the case of Subhash Chander v. Kishan Lal where the convict who was to be sentenced to death instructed his counsel that he would be willing to accept a sentence of life imprisonment without remission under the CrPC or the jail manual or similar rules. Mr. Dwivedi however submitted that such consent may be given by the prisoner in terrorem, as many people would choose any alternative punishment rather than the death penalty. He implored the court to not put the prisoners in such a position as courts may return to handing out brutal and unusual punishments merely in order to express the judge’s personal anger at the offence. He made reference to the Bloody Assizes where Judge Jeffreys was alleged to have invented punishments which were not known in either common law or statute. Mr. Dwivedi submitted that just as the Court could not direct the executive to grant remission in a particular case, it could not also direct that remission be withheld in a particular case.The Court however asked Mr. Dwivedi as to why the court should not interfere as they had virtually legislated in the cases of Vishaka as well as the Prakash Singh case. Mr. Dwivedi replied that the court could, as it had previously done lay down guidelines until statutory law was enacted, but submitted that the powers of the court even under Article 142 are to be exercised within a limited sphere. He submitted that the case of Premchand Garg states that while the power under Article 142 is very wide, it cannot be exercised contrary to a fundamental right or contrary to a statute. He submitted that the power of the Supreme Court under Article 142 to do “complete justice” did not give it the power to supplant but merely supplement existing statutes and this power was to be understood as one which would aid the molding of relief in a particular case rather than the power to create law which would apply to all cases.Mr. Dwivedi thereafter referred to the Criminal Sentences Act, 1997 and the Criminal Justice Act, 2003 in the United Kingdom which lays down sentencing guidelines. The United Kingdom currently permits whole life sentences but after the European Court of Human Rights judgment in Vinter v. UK it is necessary that the sentence is subject to review and the possibility of release is not taken away. He submitted that in the UK, there is possibility of early release and the quantum of the sentence is determined by a variety of factors such as the nature of the offence, circumstances of the convict etc. He submitted that the minimum sentence out of a life term, which is believed to have a punitive impact is called a “tariff” and the remainder of the sentence could serve other penological purposes. He submitted that while it may not be advisable to simply adopt these guidelines, some such guidelines could be laid down. Mr. Dwivedi further submitted that the right to be considered had been recognized by the Supreme Court in several cases. He...

There should not be a sentence imposed which foreclosed the options of Remission and Commutation; Andhyarujina [Sriharan-Summary of Arguments;Day-8]

Nishant Gokhale

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