Thursday 16 August 2007

Constitutional law-Central and state jurisdiction in the area of criminal law and administration

Constitutional Law

Central and state jurisdiction in the area of criminal law and administration

by,

Lalu John Philip, I year B.A.LLB, NLSIU.

Introduction

In a federal system, where the functions and powers are divided between the central and regional governments, it is important to determine the scope and extent of legislative powers that rests with the centre and the states. The framers of our constitution have provided specifically a detailed list of subject matter over which the central or/and state governments can legislate.1But the problem with providing such an elaborate lists of subjects in a constitution is that, as K.C. Wheare points out, ‘it is certain that disputes will arise about whether a particular matter falls under the headings of one list or of the other, for words are wide and ambiguous, and it would be remarkable if, in drawing up two or three lists, there was not some possibility of overlapping between them’.2


Thus the purpose of this paper is to find out whether there are any such overlapping between the entries relating to criminal law and administration and also whether there are any ambiguities to the meaning of the words used in the lists. In short, the paper purports to delineate the scope and extent of the central and state jurisdiction in the area of criminal law and administration.

Relevant Entries

The jurisdiction of centre and state in matters relating to criminal law and administration is provided in entry 1 and 2 of List III. These entries run as follows.

Entry 1: ‘Criminal law, including all matters included in the Indian Penal Code at the commencement of the Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.’

And entry 2 provides that

Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.’



The implication of the fact that criminal law is a subject matter of concurrent list is that states are also competent to legislate with respect to matters in this list subject to the rule of repugnancy in Art.254.3

Criminal law can be defined as ‘that part of the law which deals with the definition, and punishment of crime and with the procedure for the trial of persons suspected or accused of crime: that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. The term “criminal law” is sufficiently comprehensive to cover all of that branch of jurisprudence which deals in any way with crimes and punishments.4

The head of legislation ‘criminal law’ in item 1 of List III is of wide significance and comprehensive in its scope. Under this head the state legislature and Parliament have competence to legislate upon all matters which relate to criminal law, so long as the laws so enacted do not affect offences against laws expressly excluded under the Entry itself.5

The words following the expression ‘criminal law’ enlarge the scope to any matter which can validly be considered to be criminal in nature. The exercise of power under this entry, therefore, has to be construed liberally so as to give full play to the legislative activity. The width of the entry, however, is controlled by the latter expression which takes away the power of either legislature to legislate in respect of offences against laws with respect to any of the matters specified in List I or list II.6

Thus when the competence of Gujarat State legislature to pass Gujarat Lokayukta Act, 1986 was challenged, the Court held that the impugned Act, in pith and substance is a law to provide for investigations or enquiries into the allegations against public functionaries falling within the domain of Criminal law including the Indian Penal Code and actionable wrongs. The Act squarely falls under entries 1 and 8 of the concurrent list, and not under entry 97 of the union list. Therefore, the court held that the state legislature was competent to enact it.7

In short, the stand of the court can be said as follows: ‘It is well established that the widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each other. It is then the duty of this court to reconcile the entries and bring about a harmonious construction.’8

The potential of conflict or overlap in this entry lies in the fact that it excludes any of the offences against laws with respect to any of the matters specified in List I or List II. It is quite possible that, central legislature may not be able to legislate on a criminal matter as it might be a matter specified in List II. Thus a legislation by union parliament to be valid under this entry must satisfy two requirements; one, it must relate to criminal law and two, the offence should not be such as has been or could be provided against laws with respect to any of the matters specified in List II.

Most often the entry in list II which has the potential to come into conflict with the entry 1 of concurrent list is that of ‘public order’. This is because public order is so closely related to (criminal) law and administration, that when the centre brings about a piece of legislation related to criminal law, question arises as to whether that legislation is a subject matter under ‘public order’ or not. If it can be proved that it is a legislation relating to ‘public order’, then the union parliament would not have the competency to pass that particular legislation.

Thus one of the two issues addressed in this paper is what is the scope of entry 1 of list II, i.e. Public order (but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power) with reference to the entry 1 of list III.


Public order and criminal law


To understand what part of criminal law comes under the purview of public order, firstly it is important to understand the meaning attributed to public order by courts.

In Romesh Thappar v. The State of Madras9, the SC while discussing the validity of Madras Maintenance of Public Order Act, 1949, defined the meanings of public order and public safety. The court held that "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1-A) of the impugned Act refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety. Quoting Stephen in his Criminal Law of England [Vol. II, p. 242], the court observed that "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.

The court in this case held the impugned section of the above Act void and unconstitutional by opining that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.

The distinction was made clearer in a very similar case10, in which the court by applying the opposite concepts, explained these two terms. Thus the court opined that while 'public disorder' is wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety' (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State.

In Ram Manohar Lohia v. state of Bihar11, SC court made another distinction-between public order and law and order. In this case, an order was passed by the District Magistrate directing detention of petitioner under Rule 30 (1) (b) [which entitled him to prevent subversion of public order] with a view to prevent him from acting in any manner prejudicial to public safety and maintenance of law and order. Court observed that ‘public order’ and ‘law and order’ are not same thing. An Order of detention to prevent acts prejudicial to ‘public order’ might be justifiable but a similar Order to prevent acts prejudicial to ‘law and order’ would not be justified by Rule. ‘It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules’.

Thus if we analyse the meanings given to public order by courts, we can see that it does not include law and order nor does it include security of the state. This becomes problematic, because then the question arises who has the jurisdiction over law and order. One possible interpretation that can be given is that after carving out public order and security of state from law and order, what remains of it will go under criminal law and administration.



Decision of the Court in Kartar Singh v. State of Punjab

The scope of the entry “public order” and its relation to entry regarding criminal law was explained in detail by the SC in the case of Kartar singh v. state of Punjab12. In this case, the question before the five-judge bench was the constitutional validity of Terrorist and Disruptive Activities (prevention) Act of 1985 passed by the parliament.

R.M Sahai J. pointed out the issue very clearly. Terrorist or disruptive activity is criminal in content, reach and effect. The central and state legislatures both, therefore, are empowered to legislate in respect of such an activity under entry 1 of concurrent list. But the entry carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List II or I. The controversy thus narrows down to if the legislation relating to TADA can fall in entry 1 of List II then the state legislature would have competence to make a law under this entry and create offences for violation of such law under item 64 of List II and central legislature would be precluded from making any law. That would happen if it can be said that law relating to TADA is either in fact, or in pith and substance a law relating to, ‘public order’.

None of the judges disputed the fact that terrorist activities would not come under the ambit of public order. But while majority traced the competency of parliament to entry 1 of List I (Defence of India), judge Sahai held that the central legislation could be upheld under entry 1 of List III.

The researcher believes that the approach adopted by J.Sahai is more correct because terrorism is criminal in nature and when an entry for criminal law is provided specifically in the concurrent list, it is unnecessary to give a wide interpretation to entry 113 of List I.

Another advantage of tracing the competence to concurrent list is that, the states will also have the power to deal with terrorism or other similar problems (naxalism?) that may affect the states.

He reached this conclusion by distinguishing terrorism from mere public disorder. “Is the distinction between public order as visualised in Entry 1, list II and TADA of degree only or are they substantially different? ‘Terrorism constitutes a direct repudiation of liberal and human values and principles, and that terrorist ideology is…..constantly deployed in a struggle to defame and discredit democracy.’ Terrorism whether it is sponsored or revolutionary or even political by its nature cannot be considered to be public order as explained by this court. Conceptually, public order and terrorism are different not only in ideology and philosophy but also in cause or the mens rea the manner of its commission and the effect or result of such activity. Public order it is well understood and fully comprehended as a problem associated with law and order. Terrorism is a new crime far serious in nature, graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the state.”


Jurisdiction in the area of criminal administration


In the second part of the project, the researcher purports to analyse the scope and extent of the jurisdiction of state and parliament in the area of criminal administration. In this project only one aspect of it, namely the jurisdiction of states and parliament in the matter of suspension, remission and commutation of sentences, is analysed.

Under Art.161, the state government has the right to remit or commute the sentence of any convict14.Also, entry 4 of list II provides that “ Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions”. But the problem to be considered is in case of a transferred prisoner, which is the appropriate government to remit or commute the sentence-is it the government who convicted the prisoner or is the government in whose prison, the prisoner after transfer is lodged? The Punjab & Haryana High Court considered this issue in detail in the case of Jhanda Singh v. State of Punjab15. The Court said that, the transferee state cannot rely on the phrase ‘any person’ in Art.161 and say that the phrase includes transferred prisoners also. If that were the case, then it would also cover even the case of a convict who after jumping the bail absconds and enters the territory of the other State. But this definitely is not the case and therefore the entry has to be reasonably construed.

But the Court said that by virtue of sec.432 and 433, the appropriate government has the power to remit and commute the sentences of any convict. And by constructing 432(7)16 which defines what ‘appropriate government’ means, the power to remit or commute the sentence of a convict lies with the state within which the offender is sentenced.

Then again, no state governments does not have extra-territorial jurisdiction. But the court said that by virtue of subsection (2) of Section 317 of the Transfer of Prisoner’s Act, 195018, “the writ, warrant or order of a Court by which he has been committed, if happens to be located in a State other than the State in whose prison the prisoner concerned is lodged, are afforded extra-territorial operational efficacy.”

Another question to be considered is the competence of the parliament to legislate in matter relating to suspension, remission and commutation of sentences. Does it come under criminal procedure or is it a matter that related to prison or prisoners as provided in entry 4 of list II?

Thus in Maru ram v. Union of India19, the petitioners challenged the vires of Section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels “'caging' of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice.” But Court rejected this contention saying that “Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in Section 433A, which merely enacts a rider, as it were, to Sections 432 and 433(a). We cannot read into it a legislation on the topic of 'Prisons and Prisoners'…………. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life.”


The term ‘criminal procedure’ in entry 2 is intended to signify all that was being treated as part of criminal procedure in the Acts of the Indian legislatures prior to the enactment of the constitution. Not only matters strictly relating to procedure but all matters which, though not matters of procedure, stood included within the Criminal Procedure Code at the start of the Constitution would be subjects of concurrent legislation.20

Conclusion

In this project, the researcher addressed two issues related to the jurisdiction of centre and state in the area of criminal law and administration. One, the apparent conflict between the entry ‘public order’(entry1 of state list) and ‘criminal law’ (of concurrent list). Through case analysis, the researcher concluded that serious offences which, though may affect public order, are actually a threat to the security of the state and since they are criminal in content, the jurisdiction to make laws on them should be traced to criminal law of concurrent list so as to enable both central and state governments to legislate on them.

The second issue, broadly, was regarding the jurisdiction of states and centre to deal with ‘prisoners’. But the specific issues dealt with were 1) which state has the power to remit or commute the sentence of a transferred prisoner and 2) does the centre has the competence to provide for minimum number of years to be served by the prisoners undergoing life imprisonments. The researcher found that in the case transferred prisoners, it is the state who has convicted him has the right to remit/commute his sentence and not the state in whose prison he is lodged. And the Centre has the jurisdiction to provide the minimum term to be served by the prisoners as it is a matter relating to criminal procedure and not one that relates to ‘prison and prisoners’.

1 Art.246 read with schedule VII


2 K.C.Wheare, ‘Modern Constitutions’,( Bombay:Oxford University Press, 1984)


3 M.P Jain


4 P Ramanatha Aiyar, “The Law Lexicon”


5 (1966) 2 M.L.J. 194


6 Per R.M. Sahai J. in Kartar Singh v. State of Punjab 1994 CRI. L. J. 3139.


7 Rajendra Manubhai Patel V. State of Gujarat AIR 1992 Guj. 10


8 Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453.


9 MANU/SC/0006/1950.


10 Brij Bushan v. state of Delhi AIR 1950 SC 129.


11 AIR 1966 SC 740


12 1994 CRI. L. J. 3139.


13 Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilisation.


14 Art.161 provides that “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”


15 AIR 1976 P&H 358


16 This section provides that (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.



17 “The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed, or until such person is discharged or removed in due course of law.”


18 Which has been passed by the Parliament under entry 2 and 4 of list III


19 MANU/SC/0159/1980



20 AIR 1949 Mad. 307

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