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SCOI Report: UU Lalit pondered if this could be key to avoiding death penalty as yesterday’s fascinating constitution bench hearing queried power of sentence remission

Remission: Whose business is it?
Remission: Whose business is it?

The hearing of this case continued yesterday with Rakesh Dwivedi, counsel for both Tamil Nadu and West Bengal in the Rajiv Gandhi assassination case, arguing the whole day that state governments should have the power to suspend or remit sentences or exercise mercy by using their own discretion.

He told the Bench that remission was a ray of hope for a prisoner, if not a matter of right. He pointed out that questions of sentencing policy have been decided by the legislature in other countries, and expressed his dismay that the Union of India wants the Court to decide the sentencing policy through its Article 32 petition.

If the UOI thinks that by asking the court to increase the minimum years of imprisonment for a life convict, it can tinker with the remission policy of the state governments, why it hesitates to bring an amendment in Parliament, he asked.

Chief Justice of India (CJI) HL Dattu surprised the court by asking counsel if the voice of the people supported abolition of death sentence but if the crime committed by an accused is heinous, how would you send a message to the society, except by asking the convict to continue in jail?

Dwivedi responded by asking how the bench could assume that the convict cannot be reformed at all. Obliquely referring to the Shabnam case, in which a woman killed several members of her family in order to marry a man of her choice, he asked the counsel how such a convict could be released after 14 years.

Justice UU Lalit told the counsel that the convict, as a matter of right, can’t claim remission. He asked the counsel pointedly whether the right to be considered for remission is so sacrosanct as to be part of Article 21.

Lalit said raising the minimum number of years of imprisonment from 14 to 20 or 25 is perhaps a solution to avoid giving death penalty to a convict.

The CJI then said the Court has a role to play in this case, as Parliament has not stepped in. Referencing the Kaushal gay sex decision of the court, he said Parliament had not yet taken any step to amend section 377 of the IPC, despite the court holding that only Parliament can amend the provision.

When Lalit pointed out that a convict has a ray of hope also under Articles 72 and 161 (and that therefore, the counsel’s objections to reading down Sections 433 and 433A of Cr.P.C, so as to increase the minimum years of imprisonment for a life convict, are not convincing), Dwivedi shot back asking why the Bench wants to touch Sections 433 and 433A of Cr.P.C. if it wants the remission power intact under Articles 72 and 161.

Pointing out that people are divided on the issue of abolition of death penalty, Dwivedi said the Court in Swamy Shraddananda judgment, almost indicated that Section 433A was not acceptable to it. He expressed surprise that the Union wants the Court to do change the law, while it can move and bring an ordinance, if necessary to do so.

Dwivedi surprised the Bench by arguing that all countries which have opted for life sentence without parole have abolished the death sentence. If the court also wants to abolish the remission power in India, let it first abolish the death sentence.

The CJI then asked him how would he answer the sentiment of society which does not want a criminal to come out of jail, and be seen on the street.

When Justice Kalifulla asked Dwivedi to ready Paragraph 91 of Shraddanand, Dwivedi said it is a rider around the neck of S.433A Cr.P.C. and is tantamount to amending it case to case. It is an individualised amendment of S.433A, he argued. When Justice Kalifulla put to him that the Bench could say till the end of life and no remission, rather than say 20 or 25 years imprisonment, Dwivedi cautioned that if there is no remission, then the court will be virtually repealing S.433A.

When Justice Lalit pointed out that according to Swamy Shraddananda decision of the Court, life means life, and it is only a right to be considered for a lesser sentence (as opposed to right to lesser sentence), Dwivedi asked the Court not to enter into the executive domain. Justice Lalit responded saying that they would still be in judicial domain, as the court has sentence jurisdiction in between the death sentence and the 14 years life sentence as of now.

When the CJI asked whether the Bench could read down S.432 (2) which says that the appropriate Government ‘may’ require the presiding judge of the Court before which the conviction was had or confirmed, to state whether the application for remission from a convict be granted or refused together with reasons for such opinion, so as to read ‘may’ as ‘shall’, Dwivedi agreed that the Bench could do so, but blamed that the Union is the main culprit as it has abdicated its function, and is before the court.

Dwivedi again surprised the court by asking it to adjourn the case, let the Union consider his suggestion and come back, whether it can amend the Sections 432, and 433 of Cr.P.C. besides, Article 72 and 161 of the Constitution, if its claims that it stands for the victims’ rights, as parens patriae are true. He challenged the Union to come out with an ordinance, as it has done so in other cases.

“They will bring ordinance for other cases, but not for this”, he suggested. If you have the power, go the whole hog, he challenged the Centre.

Arguments will continue today.

Photo by Adam Jones

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