REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 190 OF 2014
Tara Singh & Ors. …Petitioners
Versus
Union of India & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
In this writ petition preferred under Article 32 of Constitution of
India, the petitioners, who have been convicted for the offence punishable
under Section 21 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for brevity, ‘the NDPS Act’) and sentenced to undergo rigorous
imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in
default of payment of fine, to suffer further rigorous imprisonment for six
months, have prayed for issue of writ of mandamus to the respondent nos. 1
to 3 commanding them to grant remission to them as per the provisions
contained in Chapter XIX of the New Punjab Jail Manual, 1996 (for short,
‘the Manual’).
2. This writ petition was listed along with SLP(Crl) No. 4079 of 2012,
wherein at the time of issue of notice, the following issue was noted:-
“The point which has been raised today on behalf of the petitioner is
whether the remission granted by the Governor under Article 161 of the
Constitution has an overriding effect over the provisions of Section 32A of
the NDPS Act. The matter needs consideration having regard to the views
expressed by this Court in the case of Meru Ram”.
The special leave petition stood abated as the sole petitioner
therein breathed his last during the pendency of the petition.
3. It is the case of the petitioners that Chapter XIX of the Manual lays
down remission and award to the convicts depending upon good conduct and
performance of duties allotted to them while they are undergoing sentence,
but the benefit under the Chapter XIX of the Manual is not made available
to the convicts under the NDPS Act on the ground that Section 32-A of the
NDPS Act bars entitlement to such remission. It is asserted in the writ
petition that the constitutional validity of Section 32-A of the NDPS Act
has been upheld in Dadu @ Tulsidas v. State of Maharashtra[1]. It is
contended by the learned counsel for the petitioners that in Maru Ram v.
Union of India and others[2], the constitutional validity of Section 433-A
of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) was under challenge
and the larger Bench of this Court has clearly held that it does not
curtail the power of the executive under Articles 72 and 161 of the
Constitution. Relying on the said decision, it is submitted that this
Court can remit the sentence and the said power cannot be curtailed by any
legislation. According to the learned counsel for the petitioners, a
conjoint reading of Dadu’s case and Maru Ram’s case, the legal position is
that remission schemes are effective guidelines for passing orders under
Article 161 of the Constitution and, therefore, they have the force of law
and, in any case, the principle in Dadu’s case clearly postulates that
Section 32-A of the NDPS Act does not come in the way of executive for
exercising the constitutional power under Article 72 or 161 of the
Constitution. On the aforesaid basis, it has been contended that the
denial of benefit sought for by the petitioner is absolutely arbitrary and
in total misunderstanding of the ratio laid down in Dadu’s case.
4. Learned counsel for the petitioners would further submit that Section
32-A of the NDPS Act cannot control the remission schemes which are
effective guidelines under Article 161 of the Constitution and the
statutory provision, by no stretch of imagination, create any fetter in
exercise of the constitutional power. In the averments, a comparison has
been made on the conviction and sentence under the NDPS Act and Section 302
of the IPC.
5. Learned counsel for the State has opposed the prayer of the
petitioners on the ground that Section 32-A of the NDPS Act curtails the
statutory power of the concerned Government and accordingly the same has
been stipulated in the Manual and hence, no fault can be found with action
taken by the State Government. Learned counsel for the State has further
contended that once Section 32-A of the NDPS Act has been held to be
constitutionally valid, the effort to compare the conviction and sentence
under Section 302 IPC with that under Section 32-A of the NDPS Act is an
exercise in futility.
6. We have heard Mr. Ranjit Kumar, learned Solicitor General who has
contended that the controversy is absolutely covered by the decision in
Dadu (supra) and the petitioners cannot claim the benefit of the Jail
Manual which is a guidance for exercise of constitutional powers by the
Governor. It is his further contention that the exercise of power under
Articles 72 and 161 of the Constitution is different than the remission
granted under Section 433-A of CrPC.
7. It is not in dispute that the petitioners have been convicted under
the NDPS Act and various offences and sentenced to suffer rigorous
imprisonment for more than 10 years and to pay a fine of Rs.1 lakh. The
singular issue is whether denial of remission under the Manual is
justified. Chapter XIX of the Manual deals with remission and reward.
Paragraphs 563 to 588 deal with remission system. Paragraphs 589 and 590
deal with reward. Paragraph 563 states that remission can be granted to
prisoners by the State Government/Inspector-General/Superintendent Jails
which is subject to withdrawal/forfeiture/revocation. It is not a right
and the State Government reserves the right to debar/withdraw any prisoner
or category of prisoners from the concession of remission. Paragraph 565
stipulates that remission is of three types, namely, ordinary remission,
special remission and the State Government remission. Paragraph 567
postulates the eligibility criteria for prisoners who will be eligible for
earning the State Government remission. Paragraph 571 provides what would
constitute non-eligibility to get ordinary remission. Paragraph 572 lays
down that ordinary remission is not earnable for certain offences committed
after admission to jail. Paragraph 576 deals with remission for good
conduct. Paragraph 581 provides for special remission. It lays down that
special remission may be given to any prisoner except such prisoners who
are deprived of remission by way of punishment whether entitled to ordinary
remission or not for special reasons. Certain examples have been
incorporated in special remission.
8. The Government of Punjab, Department of Home Affairs and Justice
through Governor has issued an order in exercise of powers conferred by
Section 432 of CrPC and Article 161 of the Constitution of India on 13th
day of April, 2007 for grant of remission of sentence to certain types of
convicts. The said order contains that instructions contained in the order
shall not apply to the persons sentenced under the Foreigners Act, 1946 and
the Passport Act, 1967 and the Narcotic Drugs and Psychotropic Substances
Act, 1985. Similar circulars have been issued on 1.9.2008, 1.6.2010,
1.4.2011, 12.4.2012, 14.8.2013 and 13.8.2014. The said orders have been
passed keeping in view the language used in Section 32-A of the NDPS Act
and the judgment delivered in Dadu’s case. Section 32-A of the NDPS Act
reads as follows:-
“32-A. No suspension, remission or commutation in any sentence awarded
under this Act.—Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any other law for the time being in force but subject to
the provisions of Section 33, no sentence awarded under this Act (other
than Section 27) shall be suspended or remitted or commuted.”
9. In Dadu’s case, the three-Judge Bench scanning the provisions have
laid down that:-
“13. A perusal of the section would indicate that it deals with three
different matters, namely, suspension, remission and commutation of the
sentences. Prohibition contained in the section is referable to Sections
389, 432 and 433 of the Code. Section 432 of the Code provides that when
any person has been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon conditions which
the person sentenced accepts, suspend the execution of his sentence or
remit the whole or any part of the punishment to which he has been
sentenced in the manner and according to the procedure prescribed therein.”
10. After so stating, the Court referred to Section 433 CrPC, which
empowers the Appropriate Government to commute the sentence. Thereafter,
deliberation centered on Section 389 of CrPC. The Bench referred to the
decision in Maktool Singh v. State of Punjab[3] and in that context opined:-
“… The distinction of the convicts under the Act and under other statutes,
insofar as it relates to the exercise of executive powers under Sections
432 and 433 of the Code is concerned, cannot be termed to be either
arbitrary or discriminatory being violative of Article 14 of the
Constitution. Such deprivation of the executive can also not be stretched
to hold that the right to life of a person has been taken away except,
according to the procedure established by law. It is not contended on
behalf of the petitioners that the procedure prescribed under the Act for
holding the trial is not reasonable, fair and just. The offending section,
insofar as it relates to the executive in the matter of suspension,
remission and commutation of sentence, after conviction, does not, in any
way, encroach upon the personal liberty of the convict tried fairly and
sentenced under the Act. The procedure prescribed for holding the trial
under the Act cannot be termed to be arbitrary, whimsical or fanciful.
There is, therefore, no vice of unconstitutionality in the section insofar
as it takes away the powers of the executive conferred upon it under
Sections 432 and 433 of the Code, to suspend, remit or commute the sentence
of a convict under the Act.”
11. Thereafter, the Court addressed to the concern expressed by the
learned counsel for the parties with regard to the adverse effect of the
Section on the powers of the judiciary. After referring to various
authorities, the Court opined thus:-
“25. Judged from any angle, the section insofar as it completely debars the
appellate courts from the power to suspend the sentence awarded to a
convict under the Act cannot stand the test of constitutionality. Thus
Section 32-A insofar as it ousts the jurisdiction of the court to suspend
the sentence awarded to a convict under the Act is unconstitutional.”
12. Thereafter, the Court held:-
“26. Despite holding that Section 32-A is unconstitutional to the extent it
affects the functioning of the criminal courts in the country, we are not
declaring the whole of the section as unconstitutional in view of our
finding that the section, insofar as it takes away the right of the
executive to suspend, remit and commute the sentence, is valid and intra
vires of the Constitution. The declaration of Section 32-A to be
unconstitutional, insofar as it affects the functioning of the courts in
the country, would not render the whole of the section invalid, the
restriction imposed by the offending section being distinct and severable.”
13. The eventual conclusions in the said case are:-
“29. Under the circumstances the writ petitions are disposed of by holding
that:
(1) Section 32-A does not in any way affect the powers of the authorities
to grant parole.
(2) It is unconstitutional to the extent it takes away the right of the
court to suspend the sentence of a convict under the Act.
(3) Nevertheless, a sentence awarded under the Act can be suspended by the
appellate court only and strictly subject to the conditions spelt out in
Section 37 of the Act, as dealt with in this judgment.”
14. Having appreciated the analysis made in the aforesaid verdict, we may
advert to the statutory scheme pertaining to suspension, remission and
commutation of sentence under the CrPC. Section 432 deals with power to
suspend or remit sentences. Section 433 deals with power to commute
sentences. Section 433-A lays the postulate for restrictions on powers of
remission or commutation in certain cases. The said provision reads as
follows:-
“433-A. Restriction on powers of remission or commutation in certain cases.
– Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishments provided by law, or where the
sentence of death imposed on a person has been commuted under Section 433
into one of imprisonment for life, such person shall not be released from
prison unless he had served at least fourteen years of imprisonment.”
15. The constitutional validity of Section 433-A was challenged in Maru
Ram (supra) and the said provision has been held to be intra vires. While
dealing with the constitutional validity, Krishna Iyer, J., speaking for
the majority, distinguished the power conferred under the constitutional
authorities under Articles 72 and 161 and the power conferred under the
Code. In the said case, it has been held that:-
“59. ..... But two things may be similar but not the same. That is
precisely the difference. We cannot agree that the power which is the
creature of the Code can be equated with a high prerogative vested by the
Constitution in the highest functionaries of the Union and the States. The
source is different, the substance is different, the strength is different,
although the stream may be flowing along the same bed. We see the two
powers as far from being identical, and, obviously, the constitutional
power is “untouchable” and “unapproachable” and cannot suffer the
vicissitudes of simple legislative processes. Therefore, Section 433-A
cannot be invalidated as indirectly violative of Articles 72 and 161. What
the Code gives, it can take, and so, an embargo on Sections 432 and 433(a)
is within the legislative power of Parliament.
60. Even so, we must remember the constitutional status of Articles 72 and
161 and it is common ground that Section 433-A does not and cannot affect
even a wee bit the pardon power of the Governor or the President. The
necessary sequel to this logic is that notwithstanding Section 433-A the
President and the Governor continue to exercise the power of commutation
and release under the aforesaid articles.”
16. After so stating, the Court posed the question, whether the
Parliament has indulged in legislative futility with a formal victory but a
real defeat? The Court answered stating ‘yes’ and ‘no’. Explaining
further, the larger Bench opined:-
“An issue of deeper import demands our consideration at this stage of the
discussion. Wide as the power of pardon, commutation and release (Articles
72 and 161) is, it cannot run riot; for no legal power can run unruly like
John Gilpin on the horse but must keep sensibly to a steady course. Here,
we come upon the second constitutional fundamental which underlies the
submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power. We proceed on the basis that these axioms are
valid in our constitutional order”.
17. The majority thereafter dealt with the powers conferred under the
constitutional authorities under Articles 72 and 161 and eventually
concluded as follows:-
“72. …….
(4) We hold that Section 432 and Section 433 are not a manifestation of
Articles 72 and 161 of the Constitution but a separate, though similar
power, and Section 433-A, by nullifying wholly or partially these prior
provisions does not violate or detract from the full operation of the
constitutional power to pardon, commute and the like.
xxxxx xxxxx
(8) The power under Articles 72 and 161 of the Constitution can be
exercised by the Central and State Governments, not by the President or
Governor on their own. The advice of the appropriate Government binds the
Head of the State. No separate order for each individual case is necessary
but any general order made must be clear enough to identify the group of
cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be
myriad and their occasions protean, and are left to the appropriate
Government, but no consideration nor occasion can be wholly irrelevant,
irrational, discriminatory or mala fide. Only in these rare cases will the
court examine the exercise.
18. The aforesaid decision makes it clear that the exercise of powers
under Article 72 or 161 is quite different than the statutory power of
remission. On that fundamental bedrock, the provision enshrined under
Section 32-A, barring a part of the provision, has been held
constitutionally valid in Dadu’s case. The principle stated in Dadu
(supra) does not run counter to the ratio laid down in Maru Ram (supra).
It is in consonance with the same.
19. The petitioners have invoked the power of this Court to grant the
benefit of remission in exercise of power under Article 32 of the
Constitution of India. Speaking plainly, the prayer is totally
misconceived. It is urged in a different manner before us that the power
exercised by this Court under Article 32 and Article 142 of the
Constitution cannot be statutorily controlled. Though the argument strikes
a note of innovation, yet the innovation in the case at hand cannot be
allowed to last long, for it invites immediate repulsion. Section 32-A of
the NDPS Act, as far as it took away the power of the Court to suspend the
sentence awarded to the convict under the Act has been declared
unconstitutional in Dadu’s case. A convict can pray for suspension of
sentence when the appeal is pending for adjudication. The aforesaid
authority has upheld the constitutional validity of the Section insofar as
it takes away the right of the executive to suspend, remit and commute the
sentence. Negation of the power of the courts to suspend the sentence
which has been declared as unconstitutional, as has been held in Dadu’s
case, does not confer a right on the convict to ask for suspension of the
sentence as a matter of right in all cases nor does it absolve the courts
of their legal obligation to exercise the power of suspension within the
parameters prescribed under Section 37 of the NDPS Act. The constitutional
power exercised under Articles 72 and 161 is quite different than the power
exercised under a statute. Recently, in Union of India v. V. Sriharan @
Murugan and ors[4], echoing the principle stated in Maru Ram (supra), it
has been held:-
“As has been stated by this Court in Maru Ram (supra) by the
Constitution Bench, that the Constitutional power of remission provided
under Articles 72 and 161 of the Constitution will always remain
untouched, inasmuch as, though the statutory power of remission,
etc., as compared to Constitution power under Articles 72 and 161 looks
similar, they are not the same. Therefore, we confine ourselves to the
implication of statutory power of remission, etc., provided under the
Criminal Procedure Code entrusted with the Executive of the State as
against the well thought out judicial decisions in the imposition
of sentence for the related grievous crimes for which either
capital punishment or a life sentence is provided for. When the said
distinction can be clearly ascertained, it must be held that there is a
vast difference between an executive action for the grant of commutation,
remission etc., as against a judicial decision. Time and again, it is
held that judicial action forms part of the basic structure of the
Constitution. We can state with certain amount of confidence and
certainty, that there will be no match for a judicial decision by
any of the authority other than Constitutional Authority, though in
the form of an executive action, having regard to the higher pedestal in
which such Constitutional Heads are placed whose action will remain
unquestionable except for lack of certain basic features which has also
been noted in the various decisions of this Court including Maru Ram
(supra)”.
20. What is being urged is as constitutional powers under Articles 72 and
161 are different and they remain untouched even by sentence of this Court,
similar powers can be exercised under Article 32 of the Constitution of
India. Article 32 of the Constitution of India enables a citizen to move
this Court for enforcement of his fundamental rights. Moving this Court
for the said purpose is fundamental. The larger Bench of the Court has
already upheld the constitutional validity of Section 433-A CrPC. The
three-Judge Bench has declared barring a small part of Section 32-A of the
NDPS Act as constitutional. The recent Constitution Bench decision in V.
Sriharan (supra) has clearly opined that the constitutional power engrafted
under Articles 72 and 161 are different than the statutory power enshrined
under Section 433-A CrPC. The petitioners do not have a right to seek
remission under the Code because of Section 32A of the NDPS Act. They can
always seek relief either under Article 71 or 161 of the Constitution, as
the case may be. That is in a different domain.
21. The issue here is whether a writ of mandamus can be issued to
authorities to grant remission to the petitioners. In Ramdas Athawale (5)
v. Union of India and others[5], it has been held by the Constitution Bench
that:-
“46. It is equally well settled that Article 32 of the Constitution
guarantees the right to a constitutional remedy and relates only to the
enforcement of the right conferred by Part III of the Constitution and
unless a question of enforcement of a fundamental right arises, Article 32
does not apply. It is well settled that no petition under Article 32 is
maintainable, unless it is shown that the petitioner has some fundamental
right. In Northern Corpn. v. Union of India[6] this Court has made a
pertinent observation that when a person complains and claims that there is
a violation of law, it does not automatically involve breach of fundamental
right for the enforcement of which alone Article 32 is attracted.
47. We have carefully scanned through the averments and allegations made in
the writ petition and found that there is not even a whisper of any
infringement of any fundamental right guaranteed by Part III of the
Constitution. We reiterate the principle that whenever a person complains
and claims that there is a violation of any provision of law or a
constitutional provision, it does not automatically involve breach of
fundamental right for the enforcement of which alone Article 32 of the
Constitution is attracted. It is not possible to accept that an allegation
of breach of law or a constitutional provision is an action in breach of
fundamental right. The writ petition deserves dismissal only on this
ground”.
22. The present factual matrix does not remotely suggest that there has
been violation of any fundamental right. There is no violation of any law
which affects the fundamental rights of the petitioners. The argument that
when a pardon or remission can be given under Article 72 or 161 of the
Constitution by the constitutional authority, this Court can exercise the
similar power under Article 32 of the Constitution of India is absolutely
based on an erroneous premise. Article 32, as has been interpreted and
stated by the Constitution Bench and well settled in law, can be only
invoked when there is violation of any fundamental right or where the Court
takes up certain grievance which falls in the realm of public interest
litigation, as has been held in Bandhua Mukti Morcha v. Union of India and
others[7] and Samaj Parivartana Samudaya and others v. State of Karnataka
and others[8]. Therefore, we repel the submission on the said score. It
has also been argued that this Court can issue a direction to do complete
justice to grant remission. In this context, a passage from Supreme Court
Bar Association v. Union of India and another[9] is apt quoting:-
“48. The Supreme Court in exercise of its jurisdiction under Article 142
has the power to make such order as is necessary for doing complete justice
‘between the parties in any cause or matter pending before it’. The very
nature of the power must lead the Court to set limits for itself within
which to exercise those powers and ordinarily it cannot disregard a
statutory provision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating parties by
‘ironing out the creases’ in a cause or matter before it. Indeed this Court
is not a court of restricted jurisdiction of only dispute-settling. It is
well recognised and established that this Court has always been a law-maker
and its role travels beyond merely dispute-settling. It is a ‘problem-
solver in the nebulous areas’ (see K. Veeraswami v. Union of India[10]) but
the substantive statutory provisions dealing with the subject-matter of a
given case cannot be altogether ignored by this Court, while making an
order under Article 142. Indeed, these constitutional powers cannot, in any
way, be controlled by any statutory provisions but at the same time these
powers are not meant to be exercised when their exercise may come directly
in conflict with what has been expressly provided for in a statute dealing
expressly with the subject.”
[emphasis in original]
23. In Narendra Champaklal Trivedi v. State of Gujarat[11], a two-Judge
Bench of this Court while dealing with reduction of sentence in respect of
mandatory sentence has held:-
“…where the minimum sentence is provided, we think it would not be at all
appropriate to exercise jurisdiction under Article 142 of the Constitution
of India to reduce the sentence on the ground of the so-called mitigating
factors as that would tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive statutory provision
that prescribes minimum sentence for a criminal act relating to demand and
acceptance of bribe. The amount may be small but to curb and repress this
kind of proclivity the legislature has prescribed the minimum sentence”.
In view of the aforesaid, the argument to invoke Article 142 in
conjunction with Article 32 of the Constitution is absolutely fallacious
and we unhesitatingly repel the same.
24. Consequently, we do not perceive any merit in this writ petition and
accordingly, the same stands dismissed.
..............................J.
[Dipak Misra]
…...........................J.
New Delhi [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1] (2000) 8 SCC 437
[2] (1981) 1 SCC 107
[3] (1999) 3 SCC 321
[4] 2015 (13) SCALE 165
[5] (2010) 4 SCC 1
[6] (1990) 4 SCC 239
[7] (1984) 3 SCC 161
[8] (2013) 8 SCC 154
[9] (1998) 4 SCC 409
[10] (1991) 3 SCC 655
[11] (2012) 7 SCC 80
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 190 OF 2014
Tara Singh & Ors. …Petitioners
Versus
Union of India & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
In this writ petition preferred under Article 32 of Constitution of
India, the petitioners, who have been convicted for the offence punishable
under Section 21 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for brevity, ‘the NDPS Act’) and sentenced to undergo rigorous
imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in
default of payment of fine, to suffer further rigorous imprisonment for six
months, have prayed for issue of writ of mandamus to the respondent nos. 1
to 3 commanding them to grant remission to them as per the provisions
contained in Chapter XIX of the New Punjab Jail Manual, 1996 (for short,
‘the Manual’).
2. This writ petition was listed along with SLP(Crl) No. 4079 of 2012,
wherein at the time of issue of notice, the following issue was noted:-
“The point which has been raised today on behalf of the petitioner is
whether the remission granted by the Governor under Article 161 of the
Constitution has an overriding effect over the provisions of Section 32A of
the NDPS Act. The matter needs consideration having regard to the views
expressed by this Court in the case of Meru Ram”.
The special leave petition stood abated as the sole petitioner
therein breathed his last during the pendency of the petition.
3. It is the case of the petitioners that Chapter XIX of the Manual lays
down remission and award to the convicts depending upon good conduct and
performance of duties allotted to them while they are undergoing sentence,
but the benefit under the Chapter XIX of the Manual is not made available
to the convicts under the NDPS Act on the ground that Section 32-A of the
NDPS Act bars entitlement to such remission. It is asserted in the writ
petition that the constitutional validity of Section 32-A of the NDPS Act
has been upheld in Dadu @ Tulsidas v. State of Maharashtra[1]. It is
contended by the learned counsel for the petitioners that in Maru Ram v.
Union of India and others[2], the constitutional validity of Section 433-A
of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) was under challenge
and the larger Bench of this Court has clearly held that it does not
curtail the power of the executive under Articles 72 and 161 of the
Constitution. Relying on the said decision, it is submitted that this
Court can remit the sentence and the said power cannot be curtailed by any
legislation. According to the learned counsel for the petitioners, a
conjoint reading of Dadu’s case and Maru Ram’s case, the legal position is
that remission schemes are effective guidelines for passing orders under
Article 161 of the Constitution and, therefore, they have the force of law
and, in any case, the principle in Dadu’s case clearly postulates that
Section 32-A of the NDPS Act does not come in the way of executive for
exercising the constitutional power under Article 72 or 161 of the
Constitution. On the aforesaid basis, it has been contended that the
denial of benefit sought for by the petitioner is absolutely arbitrary and
in total misunderstanding of the ratio laid down in Dadu’s case.
4. Learned counsel for the petitioners would further submit that Section
32-A of the NDPS Act cannot control the remission schemes which are
effective guidelines under Article 161 of the Constitution and the
statutory provision, by no stretch of imagination, create any fetter in
exercise of the constitutional power. In the averments, a comparison has
been made on the conviction and sentence under the NDPS Act and Section 302
of the IPC.
5. Learned counsel for the State has opposed the prayer of the
petitioners on the ground that Section 32-A of the NDPS Act curtails the
statutory power of the concerned Government and accordingly the same has
been stipulated in the Manual and hence, no fault can be found with action
taken by the State Government. Learned counsel for the State has further
contended that once Section 32-A of the NDPS Act has been held to be
constitutionally valid, the effort to compare the conviction and sentence
under Section 302 IPC with that under Section 32-A of the NDPS Act is an
exercise in futility.
6. We have heard Mr. Ranjit Kumar, learned Solicitor General who has
contended that the controversy is absolutely covered by the decision in
Dadu (supra) and the petitioners cannot claim the benefit of the Jail
Manual which is a guidance for exercise of constitutional powers by the
Governor. It is his further contention that the exercise of power under
Articles 72 and 161 of the Constitution is different than the remission
granted under Section 433-A of CrPC.
7. It is not in dispute that the petitioners have been convicted under
the NDPS Act and various offences and sentenced to suffer rigorous
imprisonment for more than 10 years and to pay a fine of Rs.1 lakh. The
singular issue is whether denial of remission under the Manual is
justified. Chapter XIX of the Manual deals with remission and reward.
Paragraphs 563 to 588 deal with remission system. Paragraphs 589 and 590
deal with reward. Paragraph 563 states that remission can be granted to
prisoners by the State Government/Inspector-General/Superintendent Jails
which is subject to withdrawal/forfeiture/revocation. It is not a right
and the State Government reserves the right to debar/withdraw any prisoner
or category of prisoners from the concession of remission. Paragraph 565
stipulates that remission is of three types, namely, ordinary remission,
special remission and the State Government remission. Paragraph 567
postulates the eligibility criteria for prisoners who will be eligible for
earning the State Government remission. Paragraph 571 provides what would
constitute non-eligibility to get ordinary remission. Paragraph 572 lays
down that ordinary remission is not earnable for certain offences committed
after admission to jail. Paragraph 576 deals with remission for good
conduct. Paragraph 581 provides for special remission. It lays down that
special remission may be given to any prisoner except such prisoners who
are deprived of remission by way of punishment whether entitled to ordinary
remission or not for special reasons. Certain examples have been
incorporated in special remission.
8. The Government of Punjab, Department of Home Affairs and Justice
through Governor has issued an order in exercise of powers conferred by
Section 432 of CrPC and Article 161 of the Constitution of India on 13th
day of April, 2007 for grant of remission of sentence to certain types of
convicts. The said order contains that instructions contained in the order
shall not apply to the persons sentenced under the Foreigners Act, 1946 and
the Passport Act, 1967 and the Narcotic Drugs and Psychotropic Substances
Act, 1985. Similar circulars have been issued on 1.9.2008, 1.6.2010,
1.4.2011, 12.4.2012, 14.8.2013 and 13.8.2014. The said orders have been
passed keeping in view the language used in Section 32-A of the NDPS Act
and the judgment delivered in Dadu’s case. Section 32-A of the NDPS Act
reads as follows:-
“32-A. No suspension, remission or commutation in any sentence awarded
under this Act.—Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any other law for the time being in force but subject to
the provisions of Section 33, no sentence awarded under this Act (other
than Section 27) shall be suspended or remitted or commuted.”
9. In Dadu’s case, the three-Judge Bench scanning the provisions have
laid down that:-
“13. A perusal of the section would indicate that it deals with three
different matters, namely, suspension, remission and commutation of the
sentences. Prohibition contained in the section is referable to Sections
389, 432 and 433 of the Code. Section 432 of the Code provides that when
any person has been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon conditions which
the person sentenced accepts, suspend the execution of his sentence or
remit the whole or any part of the punishment to which he has been
sentenced in the manner and according to the procedure prescribed therein.”
10. After so stating, the Court referred to Section 433 CrPC, which
empowers the Appropriate Government to commute the sentence. Thereafter,
deliberation centered on Section 389 of CrPC. The Bench referred to the
decision in Maktool Singh v. State of Punjab[3] and in that context opined:-
“… The distinction of the convicts under the Act and under other statutes,
insofar as it relates to the exercise of executive powers under Sections
432 and 433 of the Code is concerned, cannot be termed to be either
arbitrary or discriminatory being violative of Article 14 of the
Constitution. Such deprivation of the executive can also not be stretched
to hold that the right to life of a person has been taken away except,
according to the procedure established by law. It is not contended on
behalf of the petitioners that the procedure prescribed under the Act for
holding the trial is not reasonable, fair and just. The offending section,
insofar as it relates to the executive in the matter of suspension,
remission and commutation of sentence, after conviction, does not, in any
way, encroach upon the personal liberty of the convict tried fairly and
sentenced under the Act. The procedure prescribed for holding the trial
under the Act cannot be termed to be arbitrary, whimsical or fanciful.
There is, therefore, no vice of unconstitutionality in the section insofar
as it takes away the powers of the executive conferred upon it under
Sections 432 and 433 of the Code, to suspend, remit or commute the sentence
of a convict under the Act.”
11. Thereafter, the Court addressed to the concern expressed by the
learned counsel for the parties with regard to the adverse effect of the
Section on the powers of the judiciary. After referring to various
authorities, the Court opined thus:-
“25. Judged from any angle, the section insofar as it completely debars the
appellate courts from the power to suspend the sentence awarded to a
convict under the Act cannot stand the test of constitutionality. Thus
Section 32-A insofar as it ousts the jurisdiction of the court to suspend
the sentence awarded to a convict under the Act is unconstitutional.”
12. Thereafter, the Court held:-
“26. Despite holding that Section 32-A is unconstitutional to the extent it
affects the functioning of the criminal courts in the country, we are not
declaring the whole of the section as unconstitutional in view of our
finding that the section, insofar as it takes away the right of the
executive to suspend, remit and commute the sentence, is valid and intra
vires of the Constitution. The declaration of Section 32-A to be
unconstitutional, insofar as it affects the functioning of the courts in
the country, would not render the whole of the section invalid, the
restriction imposed by the offending section being distinct and severable.”
13. The eventual conclusions in the said case are:-
“29. Under the circumstances the writ petitions are disposed of by holding
that:
(1) Section 32-A does not in any way affect the powers of the authorities
to grant parole.
(2) It is unconstitutional to the extent it takes away the right of the
court to suspend the sentence of a convict under the Act.
(3) Nevertheless, a sentence awarded under the Act can be suspended by the
appellate court only and strictly subject to the conditions spelt out in
Section 37 of the Act, as dealt with in this judgment.”
14. Having appreciated the analysis made in the aforesaid verdict, we may
advert to the statutory scheme pertaining to suspension, remission and
commutation of sentence under the CrPC. Section 432 deals with power to
suspend or remit sentences. Section 433 deals with power to commute
sentences. Section 433-A lays the postulate for restrictions on powers of
remission or commutation in certain cases. The said provision reads as
follows:-
“433-A. Restriction on powers of remission or commutation in certain cases.
– Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishments provided by law, or where the
sentence of death imposed on a person has been commuted under Section 433
into one of imprisonment for life, such person shall not be released from
prison unless he had served at least fourteen years of imprisonment.”
15. The constitutional validity of Section 433-A was challenged in Maru
Ram (supra) and the said provision has been held to be intra vires. While
dealing with the constitutional validity, Krishna Iyer, J., speaking for
the majority, distinguished the power conferred under the constitutional
authorities under Articles 72 and 161 and the power conferred under the
Code. In the said case, it has been held that:-
“59. ..... But two things may be similar but not the same. That is
precisely the difference. We cannot agree that the power which is the
creature of the Code can be equated with a high prerogative vested by the
Constitution in the highest functionaries of the Union and the States. The
source is different, the substance is different, the strength is different,
although the stream may be flowing along the same bed. We see the two
powers as far from being identical, and, obviously, the constitutional
power is “untouchable” and “unapproachable” and cannot suffer the
vicissitudes of simple legislative processes. Therefore, Section 433-A
cannot be invalidated as indirectly violative of Articles 72 and 161. What
the Code gives, it can take, and so, an embargo on Sections 432 and 433(a)
is within the legislative power of Parliament.
60. Even so, we must remember the constitutional status of Articles 72 and
161 and it is common ground that Section 433-A does not and cannot affect
even a wee bit the pardon power of the Governor or the President. The
necessary sequel to this logic is that notwithstanding Section 433-A the
President and the Governor continue to exercise the power of commutation
and release under the aforesaid articles.”
16. After so stating, the Court posed the question, whether the
Parliament has indulged in legislative futility with a formal victory but a
real defeat? The Court answered stating ‘yes’ and ‘no’. Explaining
further, the larger Bench opined:-
“An issue of deeper import demands our consideration at this stage of the
discussion. Wide as the power of pardon, commutation and release (Articles
72 and 161) is, it cannot run riot; for no legal power can run unruly like
John Gilpin on the horse but must keep sensibly to a steady course. Here,
we come upon the second constitutional fundamental which underlies the
submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power. We proceed on the basis that these axioms are
valid in our constitutional order”.
17. The majority thereafter dealt with the powers conferred under the
constitutional authorities under Articles 72 and 161 and eventually
concluded as follows:-
“72. …….
(4) We hold that Section 432 and Section 433 are not a manifestation of
Articles 72 and 161 of the Constitution but a separate, though similar
power, and Section 433-A, by nullifying wholly or partially these prior
provisions does not violate or detract from the full operation of the
constitutional power to pardon, commute and the like.
xxxxx xxxxx
(8) The power under Articles 72 and 161 of the Constitution can be
exercised by the Central and State Governments, not by the President or
Governor on their own. The advice of the appropriate Government binds the
Head of the State. No separate order for each individual case is necessary
but any general order made must be clear enough to identify the group of
cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be
myriad and their occasions protean, and are left to the appropriate
Government, but no consideration nor occasion can be wholly irrelevant,
irrational, discriminatory or mala fide. Only in these rare cases will the
court examine the exercise.
18. The aforesaid decision makes it clear that the exercise of powers
under Article 72 or 161 is quite different than the statutory power of
remission. On that fundamental bedrock, the provision enshrined under
Section 32-A, barring a part of the provision, has been held
constitutionally valid in Dadu’s case. The principle stated in Dadu
(supra) does not run counter to the ratio laid down in Maru Ram (supra).
It is in consonance with the same.
19. The petitioners have invoked the power of this Court to grant the
benefit of remission in exercise of power under Article 32 of the
Constitution of India. Speaking plainly, the prayer is totally
misconceived. It is urged in a different manner before us that the power
exercised by this Court under Article 32 and Article 142 of the
Constitution cannot be statutorily controlled. Though the argument strikes
a note of innovation, yet the innovation in the case at hand cannot be
allowed to last long, for it invites immediate repulsion. Section 32-A of
the NDPS Act, as far as it took away the power of the Court to suspend the
sentence awarded to the convict under the Act has been declared
unconstitutional in Dadu’s case. A convict can pray for suspension of
sentence when the appeal is pending for adjudication. The aforesaid
authority has upheld the constitutional validity of the Section insofar as
it takes away the right of the executive to suspend, remit and commute the
sentence. Negation of the power of the courts to suspend the sentence
which has been declared as unconstitutional, as has been held in Dadu’s
case, does not confer a right on the convict to ask for suspension of the
sentence as a matter of right in all cases nor does it absolve the courts
of their legal obligation to exercise the power of suspension within the
parameters prescribed under Section 37 of the NDPS Act. The constitutional
power exercised under Articles 72 and 161 is quite different than the power
exercised under a statute. Recently, in Union of India v. V. Sriharan @
Murugan and ors[4], echoing the principle stated in Maru Ram (supra), it
has been held:-
“As has been stated by this Court in Maru Ram (supra) by the
Constitution Bench, that the Constitutional power of remission provided
under Articles 72 and 161 of the Constitution will always remain
untouched, inasmuch as, though the statutory power of remission,
etc., as compared to Constitution power under Articles 72 and 161 looks
similar, they are not the same. Therefore, we confine ourselves to the
implication of statutory power of remission, etc., provided under the
Criminal Procedure Code entrusted with the Executive of the State as
against the well thought out judicial decisions in the imposition
of sentence for the related grievous crimes for which either
capital punishment or a life sentence is provided for. When the said
distinction can be clearly ascertained, it must be held that there is a
vast difference between an executive action for the grant of commutation,
remission etc., as against a judicial decision. Time and again, it is
held that judicial action forms part of the basic structure of the
Constitution. We can state with certain amount of confidence and
certainty, that there will be no match for a judicial decision by
any of the authority other than Constitutional Authority, though in
the form of an executive action, having regard to the higher pedestal in
which such Constitutional Heads are placed whose action will remain
unquestionable except for lack of certain basic features which has also
been noted in the various decisions of this Court including Maru Ram
(supra)”.
20. What is being urged is as constitutional powers under Articles 72 and
161 are different and they remain untouched even by sentence of this Court,
similar powers can be exercised under Article 32 of the Constitution of
India. Article 32 of the Constitution of India enables a citizen to move
this Court for enforcement of his fundamental rights. Moving this Court
for the said purpose is fundamental. The larger Bench of the Court has
already upheld the constitutional validity of Section 433-A CrPC. The
three-Judge Bench has declared barring a small part of Section 32-A of the
NDPS Act as constitutional. The recent Constitution Bench decision in V.
Sriharan (supra) has clearly opined that the constitutional power engrafted
under Articles 72 and 161 are different than the statutory power enshrined
under Section 433-A CrPC. The petitioners do not have a right to seek
remission under the Code because of Section 32A of the NDPS Act. They can
always seek relief either under Article 71 or 161 of the Constitution, as
the case may be. That is in a different domain.
21. The issue here is whether a writ of mandamus can be issued to
authorities to grant remission to the petitioners. In Ramdas Athawale (5)
v. Union of India and others[5], it has been held by the Constitution Bench
that:-
“46. It is equally well settled that Article 32 of the Constitution
guarantees the right to a constitutional remedy and relates only to the
enforcement of the right conferred by Part III of the Constitution and
unless a question of enforcement of a fundamental right arises, Article 32
does not apply. It is well settled that no petition under Article 32 is
maintainable, unless it is shown that the petitioner has some fundamental
right. In Northern Corpn. v. Union of India[6] this Court has made a
pertinent observation that when a person complains and claims that there is
a violation of law, it does not automatically involve breach of fundamental
right for the enforcement of which alone Article 32 is attracted.
47. We have carefully scanned through the averments and allegations made in
the writ petition and found that there is not even a whisper of any
infringement of any fundamental right guaranteed by Part III of the
Constitution. We reiterate the principle that whenever a person complains
and claims that there is a violation of any provision of law or a
constitutional provision, it does not automatically involve breach of
fundamental right for the enforcement of which alone Article 32 of the
Constitution is attracted. It is not possible to accept that an allegation
of breach of law or a constitutional provision is an action in breach of
fundamental right. The writ petition deserves dismissal only on this
ground”.
22. The present factual matrix does not remotely suggest that there has
been violation of any fundamental right. There is no violation of any law
which affects the fundamental rights of the petitioners. The argument that
when a pardon or remission can be given under Article 72 or 161 of the
Constitution by the constitutional authority, this Court can exercise the
similar power under Article 32 of the Constitution of India is absolutely
based on an erroneous premise. Article 32, as has been interpreted and
stated by the Constitution Bench and well settled in law, can be only
invoked when there is violation of any fundamental right or where the Court
takes up certain grievance which falls in the realm of public interest
litigation, as has been held in Bandhua Mukti Morcha v. Union of India and
others[7] and Samaj Parivartana Samudaya and others v. State of Karnataka
and others[8]. Therefore, we repel the submission on the said score. It
has also been argued that this Court can issue a direction to do complete
justice to grant remission. In this context, a passage from Supreme Court
Bar Association v. Union of India and another[9] is apt quoting:-
“48. The Supreme Court in exercise of its jurisdiction under Article 142
has the power to make such order as is necessary for doing complete justice
‘between the parties in any cause or matter pending before it’. The very
nature of the power must lead the Court to set limits for itself within
which to exercise those powers and ordinarily it cannot disregard a
statutory provision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating parties by
‘ironing out the creases’ in a cause or matter before it. Indeed this Court
is not a court of restricted jurisdiction of only dispute-settling. It is
well recognised and established that this Court has always been a law-maker
and its role travels beyond merely dispute-settling. It is a ‘problem-
solver in the nebulous areas’ (see K. Veeraswami v. Union of India[10]) but
the substantive statutory provisions dealing with the subject-matter of a
given case cannot be altogether ignored by this Court, while making an
order under Article 142. Indeed, these constitutional powers cannot, in any
way, be controlled by any statutory provisions but at the same time these
powers are not meant to be exercised when their exercise may come directly
in conflict with what has been expressly provided for in a statute dealing
expressly with the subject.”
[emphasis in original]
23. In Narendra Champaklal Trivedi v. State of Gujarat[11], a two-Judge
Bench of this Court while dealing with reduction of sentence in respect of
mandatory sentence has held:-
“…where the minimum sentence is provided, we think it would not be at all
appropriate to exercise jurisdiction under Article 142 of the Constitution
of India to reduce the sentence on the ground of the so-called mitigating
factors as that would tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive statutory provision
that prescribes minimum sentence for a criminal act relating to demand and
acceptance of bribe. The amount may be small but to curb and repress this
kind of proclivity the legislature has prescribed the minimum sentence”.
In view of the aforesaid, the argument to invoke Article 142 in
conjunction with Article 32 of the Constitution is absolutely fallacious
and we unhesitatingly repel the same.
24. Consequently, we do not perceive any merit in this writ petition and
accordingly, the same stands dismissed.
..............................J.
[Dipak Misra]
…...........................J.
New Delhi [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1] (2000) 8 SCC 437
[2] (1981) 1 SCC 107
[3] (1999) 3 SCC 321
[4] 2015 (13) SCALE 165
[5] (2010) 4 SCC 1
[6] (1990) 4 SCC 239
[7] (1984) 3 SCC 161
[8] (2013) 8 SCC 154
[9] (1998) 4 SCC 409
[10] (1991) 3 SCC 655
[11] (2012) 7 SCC 80
