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A CRITICAL ANALYSIS ON COMMUTATION OF CAPITAL PUNISHMENT IN INDIA

Author: Rakshandha Darak, III year of B.A LL.B (Hons) from Alliance University

Co-author: Biruchan Chetia Phukon, III year of B.A LL.B (Hons) from Alliance University

Co-author: Langei Laishram, III year of B.A LL.B (Hons) from Alliance University


Introduction

Commutation can be defined as a process by which a particular punishment is substituted by another punishment that is lighter as compared to the other previously provided punishment. The authority to provide a punishment lies in the hands of judicial authorities and the courts with competent authority has the power to award capital punishment to the offenders. But when it comes to the commutation of capital punishment the head of the state has the power in his hands to exercise his executive power to grant pardon and hence commute certain awarded punishments to less rigorous punishments. But then when capital punishment is commuted it forfeits the reason behind awarding such punishment and in adverse conditions, such a commutation can prove to be against the conditions and arrangements of socio-legal society.

Commutation is not only the key by which the offender is granted mercy. There are other ways as well such as suspension, respite, reprieve, remission and pardon. But there is always confusion regarding some of these terms. Such as suspension of punishment means to withdraw or take away or in a more general sense to put a halt to a punishment for the time being. It is also called the temporary postponement of the awarded punishment.[1] Remission can be defined as the process by which the amount of time is reduced from the punishment but the character of the punishment remains the same. Section 433 of the CrPC, 1973 states that the president of India and the governor has the power to commute punishments in India. The punishments which are according to section 45 of IPC, 1860 can be commuted by the higher authorities. But when it comes to the commutation of capital punishment in India, it has always been a question of doubt and controversy. On one hand, it is a sensitive matter from the side of the accused as human rights are involved in it.[2] But from the side of the victim, this is a deserved and appropriate punishment according to the gravity of the crime committed by the accused. Section 433 (a), CrPC, 1973 provides for the commutation of capital punishment in India. Commutation of capital punishment to life imprisonment arbitrarily can have adverse impacts on society because when it comes to a criminal act, it is not only committed against the accused but the society as a whole and depending on the gravity of the crime appropriate punishment is awarded by the higher authorities


Procedure for the Commutation of Capital Punishment in India

Capital punishment is commuted in India by the way of pardoning. Capital punishment can be commuted according to article 72 of the Indian Constitution (Constitutional provision to grant pardon). It can be commuted by the President of India or by the governor, but there are certain limitations to their use of power. Commutation of capital punishment is done by the way of granting pardon. It is provided under article 72 of the Indian Constitution. It states that; “Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

(1) The President 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

(a) In all cases where the punishment or sentence is by a Court Martial;

(b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) In all cases where the sentence is a sentence of death

(2) Noting in sub-clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.”[3]


Article 72 of the Indian Constitution provides the president of India the power to commute capital punishment in India. He can commute capital punishment to rigorous life imprisonment. When it comes to the procedure which is followed for granting pardon, it is as follows;

  1. Firstly a mercy petition is filed to the president of India under Article 72 of the Indian Constitution.

  2. Secondly, such a petition is further sent to the Ministry of Home Affairs and further consultation is considered regarding it with the state authorities and this is done by considering the socio-legal impact of it on society.

  3. After the consultation is done with the state government then with further recommendations the petition is sent back to the president.

The purpose of granting pardon and the commutation is to help an innocent person from getting punished and to avoid a miscarriage of justice and to avoid cases of double conviction.[4] The reason behind granting the president the power of commutation is of dual purpose.

  1. By giving such powers to the president there will always a door opened for judicial corrections.

  2. When the punishment awarded is duly harsh, then the president can award relief to the person to whom the punishment has been awarded.

In the case of Manu Ram .V. UOI[5], the Supreme Court held that Article 72 of the Indian Constitution needs to be exercised with the help of the central government and the president cannot use it at its discretion. In the case of Epuru Sudhakar .V. Others,[6] it was held by the court that the power of the president under Article 72 of the Indian constitution can be challenged on various grounds such as it is based on mala fide contention or the material evidence is kept out of consideration.


There is a difference between the pardoning powers of the president and the governor. It is such that, the pardoning powers of the president are wider as compared to the governor.[7] The pardoning powers of the president lie under article 72 of the Indian Constitution and the pardoning powers of the governor lie under article 161 of the Indian Constitution. It states that; “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.”[8]

When it comes to the punishment awarded by the court-martial, it can only be pardoned by the president. More than that when it comes to the commutation of capital punishment, it can only be done by the president and not by the governor.


Under criminal law, the commutation of capital punishment is done under section 433 of CrPC, 1973. It states that; “Power to commute the sentence. 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;

(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.”[9]


According to this section, it states that every government has the right to commute punishment from harsh punishment to a lower punishment. But when it comes to capital punishment and its commutation there has always been a lot of discrepancy with regards to it. Especially, section 433 (a) of CrPC, 1973 states the provision for the commutation of capital punishment in India. Whereas section 433 (b) of CrPC, 1973 states that capital punishment can mostly be commuted to life imprisonment for 14 years.[10] But in the year 2005, the Supreme Court held that the punishment of life imprisonment is for life and not just for 14 years.


Life Imprisonment as a substitution for capital punishment by the process of commutation

Capital punishment can be defined as a type of punishment of life that is given to a particular offender for committing a heinous crime against the victim and society as a whole. In such a type of punishment, the offender’s life is put to an end by using various methods. Capital punishment has been banned by various countries as it is against human rights. In India, capital punishment is awarded in the rarest of rare case. Various countries in the world consider that capital punishment is a gross violation of human rights so that they believe in giving life imprisonment to the offenders in a form that is equal to capital punishment. Such kind of life imprisonment consists of no provision for parole and remission and hence this allows the state to punish the wrongdoer without taking his life.[11] In the case of Ankush Maruti Shinde.V. St. of Maharashtra,[12] the court held that the irrevocable nature of capital punishment makes it a harder punishment as there is no support from the criminal justice system of India. In the Rajiv Gandhi assassination case,[13] the court held that once a capital punishment is commuted to life imprisonment it means imprisonment for the complete life of the convict and hence article 72 and 161 of Indian Constitution does not operate in this case. In the case of Swamy Shraddhananda V. State of Karnataka,[14] the court held that when capital punishment is commuted to life imprisonment, it serves the ends of justice in a better way other than capital punishment. In the case of Jagdish .V. State of M.P[15], the court had commuted capital punishment to life imprisonment with the purpose that this will provide a chance to the convict to think about his mistakes and get a chance to start new in his life.


From the above-mentioned case laws, it is evident that the Indian judiciary is keen on substituting capital punishment with life imprisonment but with difficult terms. By doing so the judiciary is trying to maintain a balance between the rights of the accused and the offender. By commuting capital punishment the human rights of the accused are withheld and by awarding life imprisonment with difficult terms justice is done to the victim and an example is set in the society. Commutation often leads to the defeat of the reasoning provided by the court in providing such punishment and thus defeats the entire purpose of awarding such a punishment. But when it comes to commutation of capital punishment it is always considered as a difficult situation as in grave times it leads to injustice to the victims and sometimes to the judicial miscarriage it leads to the innocent serving the punishment. In India, capital punishment is awarded in the rarest of the rare case but by substituting this doctrine with life imprisonment with difficult terms commutation can take place in India and thus it strikes a balance between the rights of the accused and the victim.


Conclusion

Commutation of capital punishment is always considered a noble act. But when punishment is commuted it defeats the entire process of awarding such punishment. In adverse cases, there can be many impacts on the socio-legal arrangements of society. In the case of the commutation of capital punishment in India, there is always a dilemma when it comes to maintaining a balance between the rights of the accused and the victim. When capital punishment is pronounced, it violates the human rights of the accused but when capital punishment is commuted to life imprisonment it violates the rights of the victim to seek justice.


In India, capital punishment is awarded in the rarest of rare case. It is awarded by looking at the heinously of crime. But when it comes to the Indian judiciary, in different case laws they have tried to state the reasons behind awarding life imprisonment instead of capital punishment as it provides the accused to think over the committed mistakes, to start fresh in life. But when the offence committed is grave, instead of setting an example in the society of given a punishment like capital punishment, the accused can be awarded life imprisonment with no provisions for parole and remission. India, as a country, should try to follow the principles of life imprisonment and should avoid giving capital punishment as providing life imprisonment with no provisions for parole and remission can strike a balance between the rights of the accused and the victim.


[1]Vaishnavi Rai, 'Execution, Remission, Commutation of Sentences' (All India Legal Forum, 7 November 2020) <https://allindialegalforum.in/2020/11/07/execution-suspension-remission-and-commutation-of-sentences/> accessed 10 May 2021

[2]Ibid

[3]Article 72 of India Constitution, 1949

[4]Raj Garg, 'Commutation of Death Sentence' (Indian Polity, 5 October 2019) <https://www. Indiapolity.com/daily-updates/daily-news-analysis/commutation-of-death-sentence> accessed 10 May 2021

[5]AIR 1980

[6]AIR 2006

[7]Raj Garg, 'Commutation of Death Sentence' (Indian Polity, 5 October 2019) <https://www. Indiapolity.com/daily-updates/daily-news-analysis/commutation-of-death-sentence> accessed 10 May 2021

[8]Article 161 of Indian Constitution, 1949

[9]Section 433 of CrPC, 1973

[10]Vaishnavi Rai, 'Execution, Remission, Commutation of Sentences' (All India Legal Forum, 7 November 2020) <https://allindialegalforum.in/2020/11/07/execution-suspension-remission-and-commutation-of-sentences/> accessed 10 May 2021

[11]Mahima Choudhury, 'Life Imprisonment- A substitute to the death penalty (Latest Laws, 28 August 2020) <https://www.latestlaws.com/articles/life-imprisonment-a-substitute-to-death-penalty/> accessed 10 May 2021

[12]AIR 2019

[13]AIR 1989

[14]AIR 2008

[15]AIR 1977