In yesterday’s penultimate day of hearing of Union of India vs V Sriharan @ Murugan, the battle lines were clearly drawn between the Central Government and the State Governments, most of whom are listed as respondents in this case.

Yug Mohit Chaudhary, counsel for the convicts in the Rajiv Gandhi assassination case, expressed his dismay that the Centre invoked the doctrine of parens patriae (the government as a protector of the people) to justify this litigation, when it is normally used to justify legislation, such as the law enacted by Parliament in the aftermath of the Bhopal gas disaster.

He then referred to the contention against repeated mercy/remission petitions submitted by the convicts, and said this does not apply to his clients, because for them this is the first remission application.

Ram Jethmalani, addressing the bench, asserted that every convict has a right to apply for remission or commutation and that the right to apply for remission cannot be controlled by law.

He sought to turn the arguments into a debate on the capital punishment itself, by suggesting that abolition of capital punishment in other countries, especially the UK, has not resulted in the rise of murders.

Citing the Supreme Court’s judgment in Maru Ram vs UOI, he said Section 432 CrPC coexists with the jurisdiction of the Central Government under Article 72 and the state Government under Article 161.

He submitted that the two authorities to remit the death sentence coexist (Centre and the States) and if one refuses to remit, the other authority is entitled to do so, undeterred by the other authority’s decision. One can go on applying for remission, and the right to apply can’t be controlled by law, he argued citing Maru Ram. In Maru Ram, about 15000 convicts undergoing life sentence, and expecting remission, sought justice from the court.

He argued that the Central Government cannot claim primacy of any kind in commuting death sentence. “State is the final authority”, as he put it. The language of S 432 Cr.PC is clear that you can convert death sentence into a sentence of fine, he argued.

He further suggested that the Supreme Court cannot bar the grant of remission because in many cases it had held that it cannot direct the appropriate authority in the States to remit the sentences. The logic of this, therefore, is that if you can’t direct, how can you bar the States from remitting?, he asked. According to him, Swamy Shraddananda judgment of the Supreme Court, which justified the bar on the States’ remission power, does not answer this contention.

He justified the remission power of the States, as Criminal Law is Item 1 in the Concurrent List. Article 50 which directs the State to ensure separation of powers between the executive and the judiciary in the public services of the State cannot come into express conflict with Article 142 of the Constitution, under which the Supreme Court sought to regulate the remission power of the States, he submitted.

In the afternoon, the Additional Advocate General of Uttar Pradesh, Gaurav Bhatia, was categorical that the power to remit could not be taken away by the Judiciary. He regretted that in Swamy Shraddananda, the Supreme Court had not given any reasoning why death penalty had not been awarded, and why it found life sentence inadequate. ‘Article 21 is hit, if life imprisonment is deprived of remission’, he asserted.

As there is no guideline in Shraddananda, it has prejudiced the convict, he said. The convict in Shraddananda had no opportunity to address the Court why the condition of excluding remission was not required. ‘The Court in Shraddananda imposed the Special Category Sentence without hearing the convict’, he argued.

When Justice UU Lalit intervened to make the point that the hiatus between 14 years and death is left to the judiciary, and Shraddananda decision is based on this understanding, Bhatia said if remission is considered, it should be placed before the Court, and this could be a check on the exercise of remission power.

Bhatia brought to the attention of the Bench that in the 2013 Criminal Law Amendment, enacted after an exhaustive study by the Verma Commission appointed in the wake of Nirbhaya’s tragedy in 2012, there is a provision of life imprisonment till the reminder of natural life, without the lawmakers touching the power of remission. According to him the intention of the legislature was clear from this, that it did not want to amend the remission power. He contended that the power under S 432 Cr.PC is a substantive power, which is independent of Articles 72 and 161. At this point, CJI HL Dattu asked whether the remission power could be used to let lifers return to freedom and mix with the society.

Shraddananda’s lawyer, who managed to get a few minutes from the Bench, to make an intervention, told the Bench that his client was not granted parole even for a few days because of the Court’s clear ruling that remission power should not be exercised in his favour before he completed the sentence of imprisonment fixed by the Court, as a special category, to avoid the imposition of death sentence.

The Solicitor-General Ranjit Kumar, who began his submissions at 3 p.m. blamed the State Governments for not disclosing the reasons for remission of sentences, apart from the fact that the convicts had completed more than 20 years of imprisonment.

Answering the criticism that the UOI was seeking to challenge Paragraph 32 of the Supreme Court’s judgment in V Sriharan @ Murugan vs UOI, through an Article 32 petition, Ranjit Kumar argued that he was relying on the phrase ‘subject to’ in that paragraph, to say that the State is not the competent authority to exercise the remission power under Section 433 of Cr.PC ‘ When this Court has declared life means the end of one’s life, and if a person is not authorised to exercise the remission power, I can come to court to question it’, he submitted. The phrase ‘subject to’ is open to judicial review, and has a connotation, he suggested.

Juxtaposing Section 432(7)(b) of Cr.PC with Section 435 (1) of the same Code, Ranjit Kumar said the latter can apply only after the former applies. S 432 (7) (b) defines appropriate Government as the Government of the State within which the offender is sentenced or the said order is passed excluding any matter to which the executive power of the Central Government extends.

S 435(1) says that the powers conferred upon the State Government under Sections 432 and 433 to remit or commute a sentence, shall not be exercised by the State Government except after consultation with the Central Government, if the offence pertains an investigation by the CBI, or any other agency empowered to investigate an offence under the Central Act, or which involved the misappropriation, destruction of, or damage to, any property belonging to the Central Government, or which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty.

If appropriate Government is the state Government, why have Section 435, he asked. He also submitted that in the Concurrent List, if Union exercises the power, the state gets out.

The Solicitor General will continue his arguments today (12 August).