Supreme Court: Deciding the matter regarding the Court’s power to remit or pardon, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that 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. It further said that Article 32 of the Constitution 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.
In the present case, the petitioner convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), had prayed for the issue of writ of mandamus commanding the Government to grant remission to them. It was contended that Chapter XIX of the New Punjab Jail Manual, 1996 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. However, it was further contended that the constitutional validity of Section 32-A of the NDPS Act and Section 433-A CrPC has been upheld in Dadu v. State of Maharashtra, (2000) 8 SCC 437 and Maru Ram v. Union of India, (1981) 1 SCC 107, respectively, and that the said provision does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution, hence, the denial to grant remission is totally arbitrary.
The Court, hence, held that the constitutional power engrafted under Articles 72 and 161 of the Constitution is 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. However, 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. Stating that the Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights, the Court held that the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious. [Tara Singh v. Union of India, 2016 SCC OnLine SC 631, decided on 29.06.2016]