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Moot 3 Respodent 2

The document presents arguments on behalf of the Respondent regarding the primacy of the State over the Union in matters of remission under Article 161 of the Constitution of India. It asserts that the State has predominant authority in remission cases, particularly when the offence falls within its jurisdiction, and that statutory provisions cannot override constitutional powers. The Respondent requests the Court to affirm the State's authority in remission matters and prevent Union interference.

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19 views4 pages

Moot 3 Respodent 2

The document presents arguments on behalf of the Respondent regarding the primacy of the State over the Union in matters of remission under Article 161 of the Constitution of India. It asserts that the State has predominant authority in remission cases, particularly when the offence falls within its jurisdiction, and that statutory provisions cannot override constitutional powers. The Respondent requests the Court to affirm the State's authority in remission matters and prevent Union interference.

Uploaded by

anusmayavbs1
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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**IN THE HONOURABLE SUPREME COURT OF INDIA**

**CIVIL/APPELLATE JURISDICTION**

**IN THE MATTER OF:**


Union of India & Ors. …Appellants
Vs.
Respondent

**ARGUMENTS ON BEHALF OF THE RESPONDENT**

**MAY IT PLEASE YOUR LORDSHIPS:**

1. **Introduction and Constitutional Framework**


It is humbly submitted before this Honourable Court that the question before us pertains to
whether the Union or the State has primacy over the subject of remission as enlisted in **List III
(Concurrent List) of the Seventh Schedule to the Constitution of India**. It is the respectful
contention of the Respondent that the **State Government has the predominant authority** in
matters concerning remission under **Article 161 of the Constitution**, particularly in cases
where the offence falls within the State’s jurisdiction.

2. **Legislative Competence and Primacy of the State**


Your Lordships, **Entry 1 (Criminal Law) and Entry 2 (Criminal Procedure) of List III**
provide that both the Union and the State have legislative competence over criminal matters.
However, in the absence of a **specific overriding Union legislation**, the power of remission
granted to the State **under Article 161** takes precedence.

- The **Code of Criminal Procedure, 1973 (CrPC)**, particularly **Sections 432 and
433-A**, lays down the procedure for remission. However, it is settled law that a statutory
provision **cannot override a constitutional provision**.
- This Honourable Court in **Maru Ram v. Union of India (1981) 1 SCC 107** and **Union
of India v. Sriharan (2016) 7 SCC 1** has held that **Article 161 operates independently of
Section 433-A of the CrPC**, reaffirming the primacy of the State in matters of remission.

3. **Harmonious Construction and Federal Principles**


Your Lordships, the **doctrine of harmonious construction** mandates that when both the
Union and the State have the power to legislate on the same subject, an interpretation must be
adopted that upholds the authority of both without rendering one redundant.

- The power of remission being exercised by the State under **Article 161** is distinct and
does not need prior concurrence of the Union, **even if the investigation was conducted by a
central agency such as the CBI**.
- The **constitutional mandate** under Article 161 cannot be subjugated to statutory
provisions. If Parliament had intended to curtail the Governor’s power of remission, it would
have enacted a specific legislation overriding this power, which it has not.

4. **Doctrine of Occupied Field and Lack of Express Central Exclusion**


Your Lordships, it is a settled principle that the **Union’s power in the Concurrent List is not
absolute** and does not automatically exclude the State’s competence unless explicitly stated.
- The CrPC is a central law, but it does **not explicitly oust the State’s power of remission**
under Article 161.
- **In the absence of an explicit bar**, the power of remission granted to the Governor
remains intact and applicable.

5. **State’s Exclusive Power in Matters of Law and Order**


It is respectfully submitted that **law and order, prison administration, and the reformative
process of convicts fall within the State’s domain**. The Union’s attempt to centralize the
remission process is contrary to **the federal scheme of the Constitution**.

- The **State is best placed to assess social, political, and humanitarian factors** affecting
remission.
- Denying the State this power would create bureaucratic hurdles and delay justice for convicts
eligible for remission.

6. **Judicial Precedents Upholding State’s Primacy**


Your Lordships, this Court has consistently recognized the **State’s prerogative in remission
matters**, even when convictions result from **investigations conducted by central agencies**.
The **recent judgment in A.G. Perarivalan’s case** reaffirmed this principle by holding that the
Governor’s power under Article 161 remains unaffected by the Union’s objections.

7. **International Human Rights Perspective**


It is also pertinent to submit that **India’s international obligations** under human rights
conventions emphasize a **decentralized, reformative approach to justice**. Granting remission
is not merely a legalistic exercise but a **humanitarian one**, best adjudicated by the State.

**PRAYER**
In light of the above submissions, it is most respectfully prayed that this Honourable Court may
be pleased to:

1. Declare that Section 432(7) of the CrPC gives primacy to the Union Government’s executive
power in cases where its jurisdiction is coextensive with that of the State.
2. Hold that the State Government does not have overriding power to grant remission in cases
where the Union’s executive power is applicable.
3. Pass any other order(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

a) Hold that the State Government has the **primary authority** over remission matters under
**Article 161**, notwithstanding any central investigation involvement;

b) Declare that **CrPC provisions do not override the constitutional power of the Governor**;

c) Direct the Union not to interfere in remission matters that fall within the **State’s domain**;
d) Pass such other and further orders as may be deemed fit and proper in the interests of justice.

AND FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL EVER PRAY.

**(Counsel for the Respondent)**

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