the suspension, remission and commutation...

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Journal of Legal Studies and Research Volume 3 Issue 5

ISSN: 2455 2437 (India) Published by ‘The Law Brigade Publishers’, A Libertatem Media Group Company

THE SUSPENSION, REMISSION AND COMMUTATION OF

SENTENCE MAY BECOME NECESSARY UNDER DIFFERENT

CIRCUMSTANCES: A COMPARATIVE STUDY

-JLSR1

INTRODUCTION

What is tolerance? It is the consequence of humanity. We are all formed of frailty and error; let

us pardon reciprocally each other's folly - that is the first law of nature.2

- Voltaire, French Enlightenment Writer

A pardon3 is an act of mercy, pardon, forbearance and clemency. The concept of pardon is an

artefact of older times, of an age where a mighty monarch possessed the power to punish or remit

any punishment. It became a symbolic attribute of a god-like king having control over his subject’s

life and death.4 The linking of punishment and pardon are at least as old as the Code of Hammurabi,

where the prescription of harsh penalties was balanced by rules to limit vengeance and specify

mitigating circumstances.5

Under Constitution of India, head of the state is President and the pardoning power is vested to

him along with the Governors of States, who act in the similar manner to the President at the level

1 Manuscript acquired by JLSR Publication 2 Voltaire, French Enlightenment Writer. 3 Pardon is defined as "an executive action that mitigates or sets aside the punishment for a crime." – Black’s law

Dictionary 4 Legal Service India, Available at http://www.legalserviceindia.com/article/l370-Presidential-Pardon.html

(Retrieved at August 15, 2015). 5 J. P. Rai, Exercise of Pardoning Power in India: Emerging Challenges, The NEHU Journal, Vol XII, No. 2, 2014,

P. No. 1.

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of the states. Article 72 of Indian Constitution provides the President power to grant pardons. He

can suspend the punishment or commute the sentence of any person convicted of any offence. A

parallel power is given to the Governor of a state under Article 1616 of the Indian Constitution.

In addition to the constitutional provisions, the Criminal Procedure Code, 1973 in Sections 432,

433, 433A, 434 and 435, provides for pardon. The power of suspension or remission conferred by

Sec 432 and of commutation under Sec 433(b) is controlled by Sec 433A which has been inserted

by Act 45 of 1978.7 Section 548 and Section 559 of the IPC confer power on the appropriate

government to commute sentence of death or sentence of imprisonment for life as provided therein.

In this research project the researcher will focus on the Sections 432 and 433 of Code of Criminal

Procedure i.e. Suspension, Remission and Commutation of sentences.

Existing Legal Situation: The power of suspension or remission is conferred by Section 432 and

of commutation under Section 433(b) of Criminal Procedure Code and is controlled by Sec 433A

of the Code.

1.1.Research Problem

i) Whether it is a necessary to exercise the power of pardon?

ii) Whether there can be a time frame for the exercise of the pardon power?

1.2.Scope and Objective

6 Article 161. The Constitution of India, 1950.

Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 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. 7 Maru Ram v. Union of India, AIR 1980 SC 2147. 8 Section 54, Indian Penal Code, 1860.

In every case in which sentence of death shall have been passed, [the appropriate Government] may, without the

consent of the offender, commute the punishment for any other punishment provided by this Code. 9 Section 55, Indian Penal Code, 1860.

In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate Government]

may, without the consent of the offender, commute the punishment for imprisonment of either description for a term

not exceeding fourteen years.






The scope of the research project is limited to Sections 432 and 433 of Code of Criminal

Procedure i.e. Suspension, Remission and Commutation of sentences. In this research project

the researcher will analyse the conditions and circumstances in with the President of India

and Governors of States can suspend, remit or commutate sentences by going through various

provisions and case laws. The objective of this research project is to understand the concepts

like suspension, remission and commutation and to know the provisions under which they

can be granted. And also to know under suspension, remission and commutation of sentence

may become necessary under which different circumstances.

1.3.RESEARCH METHODOLOGY

The method of data collection used is mostly secondary, and the research being a doctrinal

research. The researcher will make use of the various books and journals, usage of case laws,

reviewing case laws and articles and will take the help of the websites to get better acquainted with

the topic of research. Different Legislations and Acts, Articles and Books are used to collection

data. Internet source also provided substantive information.

CRIMINAL AND CONSTITUTIONAL AUTHORITY – PRESIDENT AND GOVERNOR

“A Pardon is an act of grace, proceeding from the power entrusted with the execution of laws,

which exempts the individual on whom it is bestowed from the punishment the law inflicts for a

crime he has committed.”10

Before the commencement of the Indian Constitution, the law of pardon in British India was the

same as in England since the sovereign of England was the sovereign of India. The Government

of India Act, 1935, recognized and saved the right of the Crown or by delegation to Governor-

General to grant pardons, reprieves, respites or remissions of punishment. Section 295 of the Act,

1935, had conferred on the Governor-General acting in discretion power to suspend, remit or

commute sentences of death. The prerogative of the Crown was also delegated to the Governor-

10 Burdwick v. United States, 236 US 79.






General by the Letters Patent creating his office, empowering him to grant to any person convicted

by any criminal offence in British India, a pardon either free or subject to such conditions as he

thought fit.11

Article 72 of Indian Constitution provides about the power of Presidential Pardon. It empowers

the President to grant pardons, reprieves, respites, Commutes or remissions of punishment in all

cases where the punishment is for an offense against any law to which the executive power of the

union extends. The same is also available against sentences of courts-martial and sentences of

death. A parallel power is given to the Governor of a state under Article 161 of the Indian

Constitution. Under sections 432 and 435 CrPC there are similar powers of pardon, remission,

commutation, etc., available to the Centre and State Governments respectively.

In addition to the Constitution which confers powers on the President of India and the Governors,

Section 432 of the Criminal Procedure Code empowers the government to suspend or remit

sentence. When a person has been sentenced to punishment for an offence, the government may

at any time and with or without conditions, suspend the execution of a sentence or remit the whole

or part of the punishment under this section. Section 433 of the Criminal Procedure Code

empowers the government to commutate the sentence. Section 433A of the Criminal Procedure

Code puts some restrictions on remission and commutation of sentences in certain cases. Section

54 and Section 55 of the Indian Penal Code also confer power on the appropriate government to

commute sentence of death or sentence of imprisonment for life as provided therein.

The law governing suspension, remission and commutation of sentence is both statutory and

constitutional. The authority of the Government to grant remission or commutation or suspend

sentence under Section 432 and Section 433, CrPC is independent of the power conferred on the

President under article 72 and Governor under article 161 of the Constitution of India., no matter

both the Government and the Governor have concurrent power in regard to suspension, remission

11 P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71.






and commutation of sentences.12 The stage for the exercise of this power generally speaking is

post-judicial.

12 C.S. Ramachandra Nair v. Balachandra Goplan Pillai, 2011 CrLJ 3449 (3451) (Ker).






POWER TO SUSPEND OR REMIT SENTENCES

- Is it necessary to exercise power of Pardon

‘Suspension’ means a stay of the execution of the sentence and ‘Remission’ means reducing the

amount of sentence without changing its character.13 Remission and suspension are not the same.14

‘Remission’ means that the rest of the sentence needs not to be undergone; leaving the order of

conviction and the sentence passed by the court untouched15 i.e. reduction of the amount of

sentence without changing its character, for example, a sentence of one year may be remitted to

six months. The effect of an order of remission is to entitle the prisoner to his freedom on a certain

date. Therefore, once that day arrives, he is entitled to be released, and in the eye of law he is a

free man from that moment. As soon as there is a breach of the conditions of the remission, the

remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion

of the sentence.16

The procedure to be followed by the government is also enumerated in this section.17 On receiving

any application for the suspension or remission of a sentence, the government has to require the

concerned court to state its opinion with reasons as to whether the application should be granted

or refused. A certified copy of the records has to be sent along with such opinion. The government

may cancel the suspension or remission of a sentence, if in its opinion the condition for granting

such suspension or remission is not fulfilled: the offender may thereupon, if at large, be arrested

13 S. Sant Singh v. Secretary, Home Department, Govt. of Maharashtra Mantralaya, 2006 CrLJ 1515 (Bom). 14 Jagdish Prasad v. R, AIR 1949 All. 626. 15 Maru Ram v. Union of India, AIR 1980 SC 2147. 16 Sohan Singh v. State, AIR 1965 Punj. 156. 17 Section 432(2), The Criminal Procedure Code, 1973.






by any police officer without a warrant and remanded to undergo the unexpired portion of the

sentence.

The power to remit the whole or any part18 of the sentence belongs exclusively to the Executive.19

The power given to the government by this section is purely discretionary, and the law does not

enjoin upon the government to give reasons for remitting the unexpired portion of the sentence in

the order of remission.20 However, the appropriate government must exercise this power fairly and

not arbitrarily. In exercising its power of remission under Sec 432, Government should have regard

to the limitation imposed by Sec 433A of Criminal Procedure Code.21 The remission and

suspension under section 432 does not in any way interfere with the order of conviction passed by

the court, but it only affects the execution of the sentence.22

Coming to the controversial point regarding suspension or remission of the sentence, whether it is

necessary or just a justification for exercise of power. As it is already known, from time to time

there is power show down by executive and judiciary. Both try to show their superiority. Thus, by

resting power regarding suspension or remission will clearly give executive a chance to show

judiciary their power. Hence, open door for misuse of power by government. But to check this

problem in many cases23 judiciary has struck down such orders. To check the exercise of power

by the government, guidelines for exercise of pardon by Supreme Court was laid down in Laxman

Naskar v. Union of India,24 as–

1. Whether the offence is an individual act of crime without affecting the society at large;

2. Whether there is any chance in future recurrence of committing the crime;

3. Whether the convict has lost potential committing crime;

4. Whether there is any fruitful purpose of confining the convict anymore; and

18 State of M.P. v. Ratan Singh, AIR 1976 SC 1552. 19 Maru Ram v. Union of India, AIR 1980 SC 2147. 20 Hukum Singh v. State of Punjab, AIR 1975 P&H 148. 21 Maru Ram v. Union of India, AIR 1980 SC 2147. 22 Sarat Chandra Rabha v. Khagendranath, AIR 1961 SC 334. 23Kuljeet Singh v. Lt.Governor of Delhi, 1982 AIR 774; Sher Singh v. State of Punjab, AIR 1983 SC 465; Keher

Singh v. Union of India, AIR 1989 SC 653; K.M. Nanavati v. State of Bombay, 1961 AIR 112. 24 AIR 2000 SC 986.






5. What is the socio – economic condition of the convict’s family

In addition to that now pardoning power is under Judicial Review by the judiciary.25 And also

limitation is put on State government to consult the Central government in certain case by Section

435 of Criminal Procedure Code.

3.2 Time frame in exercise of pardon

It has been observed by the Supreme Court that a period of anguish and suffering is an inevitable

consequence of sentence of death but a prolongation of it beyond the time necessary for appeal

and consideration of reprieve is not. It can be inferred that the Supreme Court is of the view that

delay in the decision of the President causes avoidable mental agony and suffering to the convict.

Therefore, there should be a time frame during which the executive has to give its decision. And

it will not cause any unnecessary harm to the convict.

Article 21 demands that any procedure, which takes away the life and liberty of persons, must be

reasonable, just and fair. This procedural fairness is required to be observed at every stage and till

the last breath of the life. If there has been an inordinate delay in the disposal of a mercy petition

then procedural fairness is vitiated and Article 21 is violated26. Therefore, there should be a time

frame for the disposal of a mercy petition.

However, there is a different point of view as well. In this the Court has taken a different stand

from that taken by the Court in earlier cases. When the mercy petition is filed, the executive has

to form an inquiry. And it takes time for disposal of mercy petition as it may depend upon the

nature of the case. It may also depend upon the number of mercy petitions submitted by or on

25 Maru Ram v. Union of India, AIR 1980 SC 2147; Swaran Singh v. State of U.P., AIR 1998 SC 2026; Epuru

Sudhakar v. Govt. Of A. P. (2006). 26 Triveniben v. State of Gujarat, (1989) 1 SCC 679






behalf of the accused27. Moreover, no fixed delay can be considered a fixed period28. Therefore,

the court cannot set a fixed time limit for disposal of mercy petitions.

SECTION 433 CRPC – MERCY OR DEATH

The powers conferred on the President of India and the Governors of States by Articles 72 and 161

of the Constitution of India to suspend, remit or commute any sentence is ordinarily called ‘mercy

jurisdiction’. The judiciary has no such ‘mercy jurisdiction’.

Under Section 433, there is nothing to debar the appropriate government to commutate the

sentence to any sentence, thought it may be lowest sentence of fine. Under this section the

President and the Governor has the power in appropriate case to commute any sentences to a lesser

sentence.29 Section 433 provides government with power to commutate the sentences. Sections

433 includes many types of sentences which can we commutated. One of them is commutation of

death sentences i.e. mercy petition. Section 433 reads as –

The appropriate Government may, without the consent of the person sentenced commute

a. a sentence of death, for any other punishment provided by the Indian Penal Code (45 of

1860);

b. a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen

years or for fine;

c. a sentence of rigorous imprisonment for simple imprisonment for any term to which that

person might have been sentenced, or for fine;

d. a sentence of simple imprisonment, for fine.

Death sentence has always been a question of controversy, while on one hand it becomes a matter

of human rights with respect to the accused; on the other hand it is one of weighing the gravity of

27 Sher Singh v. State of Punjab, 1983SCC (Cri) 461 28 Madhu Mehta v. Union of India, 1989Cri.L.J. 2321 29 Kuljeet Singh v. Lt.Governor of Delhi, 1982 AIR 774.






the crime and its impact on the society. Section 433(a) of Criminal Procedure Code, 1973 is the

provision that provides for commutation of capital punishment30 or death penalty.

It is on the basis of Section 433(b) of Criminal Procedure Code, that most convicts are able to get

their sentence for life commuted upto 14 years. It was though wrongly also said that a sentence for

life means a sentence of 14 years. The correct law is, however, otherwise. The Supreme Court in

2005 itself declared that a sentence of life imprisonment means imprisonment for life. Section

433A of the Criminal Procedure Code puts restriction on the power of President and Governor that

the death sentence cannot be commutate less than imprisonment for 14 years. In absence of an

order under Section 55 IPC or Section 433(b) the convict cannot be released forthwith even after

expiry of 14 years.31

There have been instances where Supreme Court had reduced the sentences to simple

imprisonment, on mitigation circumstances, and advised the appropriate government to commute

the sentence to fine under Section 433(d).32 Where the sentence of fine is minimum sentence it

cannot be altered under Section 433(d).33

30 Capital Punishment can be defined as the legally authorized killing of someone as punishment for a crime. 31 Naib Singh v. State of Punjab, AIR 1983 SC 855. 32 N. Sukumara Nair v. Food Inspector, (1997) 9 SCC 101; Badri Prasad v. State of M.P., 1995 Supp (4) SCC 682. 33 Sheo Charan v. State of U.P., 2000 CrLJ 4159.


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http://www.oxforddictionaries.com/definition/english/killing#killing__3

http://www.oxforddictionaries.com/definition/english/punishment#punishment__3

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CONCLUSION AND SUGGESTION

Under Article 72 of the Constitution the President has the power to grant pardon, reprieve, respite

or remission of punishment and to suspend, remit or commute the sentence of any person convicted

of an offence, where punishment is for an offence against a law or where the sentence awarded is

of death. Under Article 161 the Governor of a State enjoys similar powers in all matters pertaining

to a law to which the executive power of the State extends. Under sections 432, 433 and 435 CrPC

there are similar powers of pardon, remission, commutation, etc., available to the Centre and State

Governments respectively.

The President is the part of executive and Governor is part of State executive. The President and

the Governor are required to act according to the aid and advice of the Council of Ministers

therefore somewhere every decision under Articles 72 and 161 would naturally be colored by

political considerations. Such mala – fide decision defeat the purpose behind giving pardoning

power to the President and Governor.

In recent years, there occurred many incidents which showed pardoning power is misused or on

the name of pardoning power many political agenda are fulfilled. Let us take the case of Afzal






Guru. The offence was heinous and the conviction was upheld all the way upto the Supreme Court

and the nature of the crime merited nothing less than the death sentence. Despite this government

sat on the matter for years because it did not want to displease the Kashmiris and had wanted to

send a message to the Muslims that the government was sympathetic with them. After Ajmal

Kasab was executed government obviously felt that if Afzal Guru was not hanged there could be

a Hindu backlash. But because of an increasing clamor government suddenly went ahead with the

execution of Afzal Guru rejecting the mercy petition.

It is also important to set a time frame for the exercise of this power; this will help in early disposal

of the cases and prevent unnecessary harm to the convict.

In the end researcher concludes that no doubt pardoning power is necessary and required but such

should not be used on the name of fulfilling political agendas and the guidelines given by Supreme

Court for exercise of pardon as was laid down in Laxman Naskar v. Union of India34 should be

strictly followed. And also delay in the pardoning petitions should be checked.

34 AIR 2000 SC 986.


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