By – Kirtika Chakraborty

In Supreme Court Of India

NAME OF THE CASE	Union Of India vs V. Sriharan @ Murugan
CITATION	Writ Petition (Crl.) No. 48 of 2014 with Writ Petition (Crl.) No. 185 of 2014, Writ Petition (Crl.) No. 150 of 2014, Writ Petition (Crl.) No. 66 of 2014 & Criminal Appeal No. 1215 of 2011
DATE OF THE CASE	April 25, 1947
APPELLANT	Union of India
RESPONDENT	V. Sriharan @ Murugan
BENCH/JUDGE	P Sathasivam, Ranjan Gogoi, N.V. Ramana
STATUTES/CONSTITUTION INVOLVED	The Indian Penal Code, The Central Excise Act 1944, The Constitution Of India 1949, the Delhi Special Police Establishment Act, 1946
IMPORTANT ARTICLES/SECTIONS	.Section 432 in The Indian Penal Code, Article 72 in The Constitution Of India 1949

ABSTRACT

An election rally in Sriperumbudur, Tamil Nadu, on May 21, 1991, was targeted by a female suicide bomber, Dhanu, who killed Rajiv Gandhi and injured a dozen other people. In addition to Dhanu, fourteen other people were killed, which include Dhanu herself. This was perhaps the first instance in which a high-profile global leader was killed by a suicide bomber, according to historical records. One month after the horrendous assassination of former Prime Minister Rajiv Gandhi, the crack special investigation team (SIT) had come a long way toward unravelling the complex plot that led to the shocking crime that baffled the nation.

INTRODUCTION

Even though the LTTE and Prabhakaran denied any involvement in the suicide bombing, his death sealed his fate. Former Sri Lankan Tamil MP Dharmalingam Siddharthan was among the first to recognize the high price Prabhakaran would pay for the killing. Dhanu arrived at the rally armed with a sandalwood garland — and a lethal suicide vest concealed by a loose-fitting bright orange salwar-kameez. When a policewoman approached Dhanu near the VIP enclosure to question her, Hari Babu interjected, saying she would garland Rajiv Gandhi. Sivarasan stood near the dais, dressed in a white kurta-pyjama. Dhanu eventually moved closer to Rajiv Gandhi as he approached a waiting crowd. The same officer attempted to push her back. But he stopped her and said, “Let everyone have a chance!” ”Dhanu wrapped the garland around him and knelt to touch his feet. But she never got out of bed. She activated the toggle switch attached to her suicide vest, resulting in a horrific blast ripped through her, Rajiv Gandhi, and 16 other people.

BACKGROUND

The Union of India filed a Writ Petition under Article 32 of the Indian Constitution, asking for the quashing of a letter dated 19.02.2014, issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India, in which the State of Tamil Nadu proposes to commute the sentence of life imprisonment and release Respondent Nos. 1-7 herein, who was convicted in the Rajiv Gandhi case.

In the writ as mentioned above petition, the petitioner, who is named as Respondent No. 6 in Writ Petition (Crl.) No. 48 of 2014 (filed by the Union of India) requests that the State of Tamil Nadu, Home Department’s G.O. No. 873 dated 14.09.2006, G.O. No. 671 dated 10.05.2007, and G.O. (D) No. 891 dated 18.07.2007 be declared unconstitutional In effect, the petitioner asked for his sentence to be commuted, which was denied by the Advisory Board.

FACTS

In response to this Court’s decision in V. Sriharan @ Murugan (supra), the Government of Tamil Nadu decided to grant remission to Respondents Nos. 1 to 7. As a result, the Government of Tamil Nadu wrote to the Secretary to the Government of India, Ministry of Home Affairs, on February 19, 2014, stating that it intends to commute the life sentences of V. Sriharan @ Murugan, T. Suthendraraja @ Santhan, and A.G. Perarivalan @ Arivu and release them. In that letter, it was also stated that four other people convicted in the same assassination, namely Jayakumar, Robert Payas, S. Nalini, and P. Ravichandran, would receive similar remission. Furthermore, it was stated in the letter that because the crime was investigated by the Central Bureau of Investigation (CBI), and following Section 435 of the Code of Criminal Procedure, 1973 (in short “the Code”), the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government; accordingly, it requested to indicate the views of the Central Government.

As a result, on April 26, 2000, the mercy petitions were forwarded to the President for consideration under Article 72 of the Constitution. After more than 11 years, the President rejected these mercy petitions on August 12, 2011. The petitioners were notified of the rejection of the petitions above on August 25, 2011. Following that, on August 29, 2011, the said rejection was challenged in W.P. Nos. 20287-20289 of 2011 before the Madras High Court. Later, in Transfer Petition (Criminal) Nos. 383-385 of 2011 and 462-464 of 2011, this Court transferred all three writ petitions to this Court in the interest of justice by order dated 01.05.2012. The Madras High Court transmitted the original records to this Court under the order mentioned earlier, which has been registered as Transferred Case (Criminal) Nos. 1-3 of 2012. All of the petitioners are currently incarcerated at the Central Prison in Vellore, Tamil Nadu, and have been there since 1991, a period of more than two decades.

 ISSUE

• If suo motu exercise of Section 432(1)’s power of remission is permissible in the scheme of the Section, and if so, whether the procedure prescribed in subsection (2) of the same Section is mandatory or not? “

• Who would be the “Appropriate Government” for granting remission under Section 401 of the Code of Criminal Procedure, which corresponds to Section 432 of the Code of Criminal Procedure?

ARGUMENTS FROM THE APPELLANT SIDE

“At the outset, learned Attorney General appearing for the Union of India submitted that what is proposed to be done by the State of Tamil Nadu in the exercise of the power of remission in the present case is illegal and without jurisdiction for the following reasons:

a) The State Government is not the ‘appropriate Government’ in the present case.

b) The State Government had no role to play in the present case at any stage.

c) Alternatively, without prejudice, the proposal by the State Government is contrary to law and does not follow the procedure set out under the Code.

 Learned Attorney General pointed out that from a bare reading of the definition of “appropriate Government” under Section 432(7) of the Code reveals that in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the “appropriate Government” in that respect would be the Central Government. It is the stand of the Union of India that this provision gives importance to the executive power of the Union and excludes the executive power of the State where the power of the Union is co-extensive.

11) It is further pointed out that as per the proviso to Article 73, the executive power of the Union referred to in Article 73(1)(a) shall not save as expressly provided in the Constitution or any law made by the Parliament, extend in any State to matters concerning which the Legislature of the State also has the power to make laws. It is argued that the proviso to Article 73 is excluded by Section 432(7) of the Code as it is only applicable where there is no express provision to maintain the executive power of the Union. Similarly, proviso to Article 162 of the Constitution limits the organizational ability of the State concerning any matter where both the Legislature of the State and the Parliament have the power to make laws, where the Constitution or any law has expressly conferred executive power upon the Union. Thus, it was submitted that the proviso contemplates that the executive power of the State may be overcome by the executive power of the Union through the provisions of the Constitution or any other law made by the Parliament. The Code is, therefore, one avenue through which this may be done and has been exercised through Section 432(7) to give priority to the executive power of the Union. Learned Attorney General further submitted that based on a reading of Articles 73 and 162 read with Section 432(7) of the Code, the “appropriate Government” in the present case would be the Central Government, as the Indian Penal Code falls under the concurrent list, to which the executive power of the Union also extends.

Learned Attorney General further pointed out that Articles 73 and 162 must also be read subject to Article 254 of the Constitution, which gives precedence to the law made by the Parliament. In this regard, reliance has been placed by the learned Attorney General on the decision of this Court in S.R. Bommai vs. Union of India, (1994) 3 SCC 1, and he asserted that the above decision completely displaces the stand of the State Government about the Concurrent List. Further, it was submitted that it is not possible to split up the Sections under which the conviction was made since it would lead to a completely absurd situation where for some offences, the Central Government would be the appropriate Government. In respect of others, the State Government would be the appropriate Government.”

ARGUMENTS FROM THE RESPONDENT

Contentions of Respondents:

“ In reply to the above submissions, Mr Rakesh Dwivedi, learned senior counsel for the State of Tamil Nadu, submitted that “appropriate Government” as defined in Section 432(7) of the Code is the State Government in the present case.

 Learned senior counsel for the State submitted that the Central Government is the appropriate Government where the sentence is for an offense against any law relating to a matter to which the executive power of the Union extends. Likewise, Article 73 of the Constitution of India makes executive power of the Union co-extensive with Parliament’s law-making power and power relating to treaties/agreements. However, it is the stand of the State that the proviso stipulates that authority referred to in sub-clause (a) would not extend in any State to matters relating to the Concurrent List of the seventh Schedule of the Constitution save where the Constitution or law of Parliament expressly provides. This interpretation of the proviso to Article 73 corresponds with the reading of the proviso to Article 162. It is the stand of the State of Tamil Nadu that Section 434 of the Code is one such provision, but it makes the Central Government’s power in cases of sentence of death concurrent and not dominant. There is no other provision in Section ‘E’ of Chapter XXXII or otherwise of the Code which subordinates the executive power of the State in the Concurrent field of legislation to the executive power of the Union in matters of remission, commutation, pardons, etc.

Learned senior counsel for the State pointed out that Article 72(3) of the Constitution expressly saves the power of the States under Article 161 and other laws to grant remission or commutation of the sentence of death from the impact of Article 72(1)(c) which confers power on the President qua all sentences of death. On a plain reading of the executive power of the State under Article 162, the same being co-extensive with the legislative power would extend to the concurrent field under List III.”

“ Learned senior counsel for the State also pointed out that while Section 55A(b) of IPC makes the State Government the appropriate Government relating to a matter to which executive power of the State extends, it is the Government of that State within which the offender is sentenced and under Section 432(7)(b) of the Code in cases other than those mentioned in Clause (a), the State Government is the appropriate Government. However, Section 432(7)(b) of the Code is wider than Section 55A(b) of IPC. It would cover matters in List III of the Seventh Schedule of the Constitution too. Section 435(2) of the Code also is indicative of the above. In a case like the present one, some offences may relate to matters to which the executive power of the Union extends, while other offences may, in the same case and qua same person, relate to matters to which the executive power of the State extends. If in such cases, a person has been sentenced to separate terms of imprisonment which are to run concurrently, then unless an order has been made by the Central Government in relation to offences to which its executive power extends, the order of the State Government would not be given effect to. The Union could have referred to this provision if the separate terms of sentences under the other Central Acts like Passport Act, Foreigners Act, Explosives Act etc. were still operating and the sentences had not been already served out. Learned senior counsel for the State submitted that in the present case, all other sentences of 2-3 years have been fully served out.”

RELATED PROVISIONS

• Section 432 in The Indian Penal Code

“432. Mischief by causing inundation or obstruction to public drainage attended with damage.—Whoever commits mischief by doing any act which causes or which he knows to be likely to cause an inundation or an obstruction to any public drainage attended with injury or damage, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”

• Article 72 in The Constitution Of India 1949

“72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit, or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a Court Martial;

 (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power   of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Noting in sub-clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being. In force.”

• Section 435 in The Indian Penal Code

435. Mischief by fire or explosive substance intends to cause damage to the amount of one hundred or (in case of agricultural produce) ten rupees.—Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards 1[or (where the property is agricultural produce) ten rupees or upwards], shall be pun­ished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

JUDGEMENT

The Supreme Court of India concluded:

“At the outset, we once again clarify that the relief sought for under these kinds of petitions is not per se review of the order passed under Article 72/161 of the Constitution on merits but the ground of violation of fundamental rights guaranteed under the Constitution to all the citizens including the death row convicts.

 The clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners and their family members for commutation of death sentence into life imprisonment and, therefore, the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the Constitution one-way or the other within a reasonable time. Profuse deliberation on the nature of power under Article 72/161 has already been said in Shatrughan Chauhan (supra), and we embrace the same in the given case.

 We are confident that the mercy petitions filed under Article 72/161 can be disposed of at a much faster pace than what is adopted now if the due procedure prescribed by law is followed verbatim. The fact that no time limit is defined to the President/Governor for disposal of the mercy petition should compel the Government to work in a more systematized manner to repose the people’s confidence in the institution of democracy. Besides, it is not a pleasure for this Court to interfere in the constitutional power vested under Article 72/161 of the Constitution and, therefore, we implore upon the Government to render its advice to the President within a reasonable time so that the President is in a position to decide at the earliest.

Before we conclude, we would also like to stress one more aspect. We have learned that the Union Government, considering the nature of the power under Article 72/161, set out specific criteria in circular for deciding the mercy petitions. We, as a result of this, recommend that given the recent jurisprudential development about the delay in execution, another criterion may be added to the existing yardsticks to require consideration of the uncertainty that may have occurred in the disposal of a mercy petition.

 In the light of the above discussion and observations, in the cases of V. Sriharan @ Murugan, T. Suthendraraja @ Santhan, and A.G. Perarivalan @ Arivu, we commute their death sentence into imprisonment for life. Life imprisonment means the 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 review in Section 433-A of the Code.

  All the writ petitions are allowed on the above terms, and the transferred cases are, accordingly, disposed of.”

CONCLUSION

Even though more than half of India’s criminal population is serving a life sentence, there is no critical literature or intellectual debate about this penalty. Following the ruling of a Supreme Court constitution bench in Union of India v. V. Sriharan & Ors, and the Criminal Law Amendment Acts of 2013 and 2018, life imprisonment has acquired a new-found harshness that provides little opportunity for reducing of terms otherwise provided for by law. Because of these legal developments, it is projected that life imprisonment will be used more frequently rather than less frequently in this article. In addition to covering modern changes in life imprisonment. The shift from transportation to life imprisonment was not backed by a strong legislative framework, necessitating a complex but ineffective patchwork of court declarations and administrative measures to fill legislative gaps. As a result of such arrangements, the punishment is particularly prone to arbitrariness. It is feared that a greater emphasis on life imprisonment may exacerbate the criminal justice system’s present problems rather than finding long-term remedies.