In Maru Ram vs Union of India in 1980, the Supreme Court’s five-Judge Constitution Bench heard the first challenge to section 433A Cr.P.C. and upheld its constitutionality.
In Maru Ram, the petitioners challenged the provision because the minimum 14 years mandatory imprisonment seemed to them to be arbitrary (14 years was prescribed by the provision for those sentenced to life imprisonment for offences, for which the alternative is the death sentence, and for those whose death sentences have been commuted) .
The bench had then rejected the pleas that the sentence for lifers could be less than 14 years, if the appropriate authority under the provision, used its remission powers.
In UOI v. V.Sriharan, currently heard by another constitution bench, the issue has turned full circle, but with a difference.
The debate now, as in 1980, is no doubt about the correctness of 14 years as minimum mandatory imprisonment for the heinous offences. But the grievance of the lifers is not that 14 years imprisonment is excessive, and that the appropriate authority must be free to exercise the powers of remission even earlier.
Instead, they are zealously defending the provision from encroachment from the judiciary, which wants to increase the minimum mandatory imprisonment for them, or at least place restraints on the exercise of remission powers by the State Governments.
Yesterday, as the hearing continued, the CJI asked senior counsel for Tamil Nadu and West Bengal, Rakesh Dwivedi, whether there can be a bar on the release of prisoners en masse on a particular day through the exercise of remission power by the state Government. Dwivedi agreed it could be done, and that the Court had placed such restraints earlier also.
Barring this unexpected agreement between the counsel and the Bench, there were sharp divergences on other issues. Dwivedi told the bench that Parliament did not feel that 14 years needed to be enhanced; therefore, the judiciary can’t legislate even under Articles 136 or 141, as separation of powers is a basic feature of the Constitution.
This provoked Justice Kalifulla to remark that the Supreme Court’s interventions in Vishakha (sexual harassment in workplaces) and police reform are instances where there has been no legislation.
The CJI then observed that only one window is being closed (S.433A), and the other two windows (Articles 72 and 161) are open and available. This led Dwivedi to remark that the Court was closing the main door.
When the CJI said Article 72 was the main door, Dwivedi disagreed, and said Section 432 Cr.P.C. was the main door.
Similar differences in perception were evident while discussing Swamy Shraddananda judgment, which restricted S.433A powers of the State Government.
Dwivedi said the judgment fortunately excluded Articles 72 and 161. To this, the CJI said the Court did so intentionally. Dwivedi’s response to this was that if there is no scope for release, it would be violative of Article 21.
Dwivedi’s sensational observation of the day, of course, was that if the convict in Mahatma Gandhi assassination case, Gopal Vinayak Godse, could be released after 16 years, why dread the prospect of release of those convicted in the Rajiv Gandhi assassination case.
TR Andhyarujina, who made his submissions after Dwivedi, referred to Nelson Mandela’s release after 24 years. He also referred to the political compulsions behind the hanging of Afzal Guru, and Yakub Memon, and said commutation of a sentence is no reflection on the judiciary, but essentially a power resting with the legislature. He recalled that Vinayak Godse argued in person before the Supreme Court. He submitted that if Parliament wanted the courts to intervene, it would have provided so expressly.
The counsel for the convicts in the Rajiv Gandhi assassination case, Yug Mohit Chaudhary opened his arguments today questioning the very basis of Union of India’s writ petition in this case.
Chaudhary drew the attention of the Constitution Bench to the fact that the Supreme Court’s judgment in V.Sriharan vs Union of India, delivered on February 18, 2014 had attained finality with the dismissal of the UOI’s review and curative petitions. Therefore, the present petition raises the question whether the UOI seeks to challenge that judgment through a PIL.
Chaudhary pointed out that in the 18 February 2014 judgment, the three-Judge Bench had held that life imprisonment means end of one’s life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.
As the Bench rose for the day, the CJI observed that it was a good question, and they would continue to hear it on the next date of listing, 11 August.