# TARA SfNGH & ORS v. UNION OF INDIA & ORS

- **Citation:** [2016] 3 S.C.R. 278
- **Court:** Supreme Court of India
- **Decided:** 2016-06-29
- **Bench:** Dipak Misra, Shiva Kirti Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tara-sfngh-ors-v-union-of-india-ors-31121
- **Pages:** 15

## Headnote

Constitution of India -Arts. 32, 72 and 161 - Power of Supreme
Court to grant remission u/Art. 32 - On facts, conviction of petitioner
under NDPS Act and sentenced to rigorous imprisonment for more
than JO years and fine of Rs. 1 lakh - Petitioners seeking issuance
of writ of mandamus to authorities to grant remission - Held:
Constitutional power to grant remission u/Arts. 72 and 161 is quite
different than the statutory power of remission uls. 433A A Cr PC -
Petitioners do not have a right to seek remission under the Code
because of s. 32A of the NDPS Act - Relief could always be sought
either u/Art. 71 or 161, as the case may be, as it is in a different
domain - Further, it cannot be said that when a pardon or remission
can be given u/Art. 72 or 161 by the constitutional authority, this
Court can exercise the similar power u/Art. 32 - Invocation of Art.
32 can be only when there is violation of any fundamental right or
where the Court takes up certain grievance falling in the realm of
public interest litigation - Narcotic Drugs and Psychotropic
Substances Act, 1985 - ss. 21, 32A - New Punjab Jail Manual,
1996 - Chapter XIX
Dismissing the writ petition, the Court
HELD: 1.1 The petitioners have invoked the power of the
Supreme 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. Section 32-A of the
Narcotic Drugs and Psychotropic Substances Act, 1985, 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 said authority has upheld the constitutional
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TARA SINGH & ORS. v. UNION OF INDIA
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
fhe 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. [Para 19] [288-E-H; 289-A]
1.2 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, as it is in a different
domain. [Para 20] [290-B]
1.3 The instant 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. Therefore, the submission is
repelled on the said score. [Para 22] [290-H; 291-A-C]
Bandhua Mukti Morcha v. Union of India and Others
(1984) 3 SCC 161:1984 (2) SCR 67; Samaj Parivartana
Samudaya and Others v. State of Karnataka and Others
(2013) 8 SCC 154: 2013 (6) SCR 810 - relied on.
1.4 Where the minimum sentence is provided, it would not
be at all a

## Text

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[2016] 3 S.C.R. 278
TARA SfNGH & ORS.
v.
UNION OF INDIA & ORS.
(WritPetition(Crl.)No. 190of2014)
JUNE 29, 2016
[DIPAK MISRA AND SHIVA KIRTI SINGH, J.J.]
Constitution of India -Arts. 32, 72 and 161 - Power of Supreme
Court to grant remission u/Art. 32 - On facts, conviction of petitioner
under NDPS Act and sentenced to rigorous imprisonment for more
than JO years and fine of Rs. 1 lakh - Petitioners seeking issuance
of writ of mandamus to authorities to grant remission - Held:
Constitutional power to grant remission u/Arts. 72 and 161 is quite
different than the statutory power of remission uls. 433A A Cr PC -
Petitioners do not have a right to seek remission under the Code
because of s. 32A of the NDPS Act - Relief could always be sought
either u/Art. 71 or 161, as the case may be, as it is in a different
domain - Further, it cannot be said that when a pardon or remission
can be given u/Art. 72 or 161 by the constitutional authority, this
Court can exercise the similar power u/Art. 32 - Invocation of Art.
32 can be only when there is violation of any fundamental right or
where the Court takes up certain grievance falling in the realm of
public interest litigation - Narcotic Drugs and Psychotropic
Substances Act, 1985 - ss. 21, 32A - New Punjab Jail Manual,
1996 - Chapter XIX
Dismissing the writ petition, the Court
HELD: 1.1 The petitioners have invoked the power of the
Supreme 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. Section 32-A of the
Narcotic Drugs and Psychotropic Substances Act, 1985, 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 said authority has upheld the constitutional
278
TARA SINGH & ORS. v. UNION OF INDIA
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
fhe 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. [Para 19] [288-E-H; 289-A]
1.2 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, as it is in a different
domain. [Para 20] [290-B]
1.3 The instant 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. Therefore, the submission is
repelled on the said score. [Para 22] [290-H; 291-A-C]
Bandhua Mukti Morcha v. Union of India and Others
(1984) 3 SCC 161:1984 (2) SCR 67; Samaj Parivartana
Samudaya and Others v. State of Karnataka and Others
(2013) 8 SCC 154: 2013 (6) SCR 810 - relied on.
1.4 Where the minimum sentence is provided, 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
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[2016] 3 S.C.R.
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. In view thereof, the submission to invoke
Article 142 in conjunction with Article 32 of the Constitution is
absolutely fallacious and is repelled. [Para 23) [292-C-E)
Narendra Champaklal Trivedi v. State of Gujarat (2012)
7 SCC 80: 2012 (6) SCR 165 - relied on.
*Dadu @ Tulsidas v. State of Maharashtra (2000) 8
SCC 437; Maru Ram v. Union of India and Others
(1981) 1 SCC 107; Maktool SinKh v. State of Punjab
(1999) 3 SCC 321:1999 (1) SCR 1156; Union of India
v. · V. Sriharan @ Murugan and Ors. 2015 (13) SCALE
165; Ramdas Athawale (5) v. Union of India and Others
(2010) 4 SCC 1: 2010 (3) SCR 1059; Supreme Court
Bar Association v. Union of India and Another (1998)
4 SCC 409: 1998 (2) SCR 795 - referred to.
Case Law Reference
(2000) 8 sec 437
referred to
Para3
(1981) 1 sec 101
referred to
Para3
1999 (1) SCR 1156
referred to
Para 10
2015 (13) SCALE 165
referred to
Para 19
2010 (3) SCR 1059
referred to
Para 21
1984 (2) SCR 67
relied on
Para 22
2013 (6) SCR 810
relied on
Para 22
1998 (2) SCR 795
referred to
Para 29
2012 (6) SCR 165
relied on
Para 23
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)
No. 190 of2014.
Under Article 32 ofThe Constitution oflndia
J. M. Khanna, Manoj Swarup, Ms. Neha Kedia, Mukul Kumar,
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Advs. for the Petitioners.
TARA SINGH & ORS. v. UNION OF INDIA
Ranjit Kumar, ASG, Rana Mukherjee, Sr. Adv., V. Madhukar, AAG,
Anvita Cowshish, Kuldip Singh, Sunita Sharma, Sanjai Kumar Pathak,
T. C. Sharma, Manish Sharma, Ms. Sushma Suri, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. l. In this writ petition preferred under Article
32 of Constitution oflndia, 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 I 0 years and
to pay a fine of Rs. I 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. I 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 poirtt 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 D(ldu ~ Tulsid(ls v. St(lfe of
M(l/mr(ls/ttra
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• It is contended by the learned counsel for the petitioners
1 (2000) s sec 437
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that in Maru Ram v. Union of India and others', 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 oflaw 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 ofbenefit 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 Governmentand 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
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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
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TARA SINGH & ORS. v. UNION OF INDIA
283
[DIPAK MISRA, J.]
Governor. It is his further contention that the e.xercise of power under
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Articles 72 and 161 of the Constitution is different than the remission
granted under Section 433-A ofCrPC.
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 I 0 years and to pay a fine of Rs. I 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 depriveJ 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 ofCrPC and Article 161 of the Constitution of
India on 13'h 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:-
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"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."
I 0. After so stating, the Court referred to Section 433 Cr PC, which
empowers the Appropriate Government to commute the sentence.
Thereafter, deliberation centered on Section 389 ofCrPC. The Bench
referred to the decision in Maktoo/ Singh v. State of Punjab' 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,
' (1999) 3 sec 321
TARA SINGH & ORS. v. UNION OF INDIA
rrnPAK MISRA, J.l
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 fancifu I. 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
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extent it affects the functioning of the criminal courts in the country,
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we are not declaring the whole of the section as uncon'stitutional
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
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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:
(J) 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.
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(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 Unjon
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
TARA SINGH & ORS. v. UNION OF INDIA
[DIPAK MISRA, J .]
433(a) is within the legislative powerof 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 i"mport demands our consideration at this
stage of the discussion. Wide as the powerofpardon, 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 433A, 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.
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( 8) The power under Articles 72 and 161 of the
Constitution can be exercised by the Central and State
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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 clearthatthe 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 D(ldu's case. The principle stated in D"du (supra) does not run
counter to the ratio laid down in M"ru R"m (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 oflndia. 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 ofinnovation,
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 D{(du '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 D"du'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
TARA SINGH & ORS. v. UNION OF INDIA
[DIPAK MISRA, J.]
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. Srilzaran ® Murugan and
ors', 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 ofremission
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 Jack of certain basic features which has also been noted in
the various decisions of this Court includingMaru 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
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of this Court, similar powers can be exercised under Article 32 of the
Constitution oflndia. Article 32 of the Constitution oflndia enables a
G
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
4 2015 ( 13) SCALE 165
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of Section 32-A of the NDPS Act as constitutional. The recent
Constitution Bench decision in V. Srilumm (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 Atlwwa/e
(5) v. Union of India and others;, 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
India6 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.
4 7. 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
' (2012320)4 sec 1
• (1990) 4 sec 239
TARA SINGH & ORS. v. UNION OF INDIA
[DIPAK MISRA, J.]
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 oflndia 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 Band/ma Mukti More/ta v. Union of
India and otlters7 and Samaj Parivartana Samudaya and others v.
State of Karnataka and otlters8• 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 o.f India and
anotlter9 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 outthe creases'
in a cause or matter be.fore 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 'problemsolver in the nebulous areas' (see K. Veeraswami v. Union of
India'") but the substantive statutory provisions dealing with the
subject-matter of a given case cannot be altogether ignored by
this Court, while making an ord~r under Article 142. Indeed, these
constitutional powers cannot,· in any way, be controlled by any
1 (1984) 3 sec 161
• (2013) 8 sec 154
' (1998) 4 sec 409
10 (1991) 3 sec 655
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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."
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[emphasis in original]
23. In Narendra Clwmpak/al 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 oflndia 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.
Nidhi Jain
Writ petition dismissed.
11 (2012) 1 sec so