Suspension, Remission & Commutation of Sentences (Sec. 432 – 435)
- Article 72 & Article 161.
- Factors to be Considered.
- Classification of Powers.
Suspension or Remission of Sentence – S.432
- Meaning of Remission.
- Two fundamental principles in sentencing.
- Executive Function of the Government.
- Remission cannot be claimed as a matter of Right.
- Guidelines to exercise power of premature release of a convict.
- Judicial Review – exercise of power of remission.
- Stage when the power can be exercised – S.432(1).
- Opinion of the Court which passed the Sentence – S.432(2).
- Conditional Remission – S.432(3).
- Procedure for filing petition/application for remission – S.432(5).
- Appropriate Government – S.432(7).
- Judicial Function vis-à-vis Executive Function.
Commutation of Sentence – S.433
- Meaning of Commutation of Sentence.
- Scope of Power u/s. 433.
- Duty to Dispose of Petitions Expeditiously.
- Power to Commute Sentences.
Lifers convicted of Capital Offences – S.433-A
- Need for enacting 433-A.
- Application of S.433-A.
- Constitutional Validity of S.433-A.
- 14 years of actual imprisonment.
- Concurrent Powers of Central Govt. in case of Death Sentence – S.434
- State Govt. to act after consultation with Central Govt. – S.435
Article 72 & Article 161
- Article 72 and Article 161 defines the ancillary powers of the President & Governor of the State of suspension, commutation and remission.
Classification of powers
The Constitutional provisions confer the following powers on the President and the Governor to grant:
- Suspend, remit or commute the sentence
Factors to be Considered
- The President or the Governor have to seek the aid and advice of their council of ministers.
- They have to obey the standards and guidelines that are intelligible and integrated with the powers so conferred.
- The President and the Governor are expected to use their discretion in judicious manner.
Suspension or Remission of Sentence (S.432)
- A person who is convicted and sentenced to imprisonment for life is bound to serve the rest of his life term in prison.
- However, there is an exception to the general rule, where in the appropriate government may commute or remit the sentence in exercise of powers given under section 432 and 433 of Cr.P.C.
Meaning of Remission
- When part of the sentence which the prisoner was to otherwise serve in the jail is let off, such act is called remission of sentence.
Two fundamental principles in sentencing
- Firstly, the sentencing is a judicial function and the executive cannot alter the sentence itself;
- Secondly, the executive can only remit, commute or suspend the sentence, however such action by the Government does not interfere the conviction of the criminal.
- Therefore, a remission of punishment does not mean acquittal.
Executive Function of the Government
- The right to grant remission is governed by the provisions of S.432.
- The Court cannot grant remission.
- The power to grant pardon or remission is in essence an executive function, which is to be exercised by the Head of the State.
Remission cannot be claimed as a matter of Right
- The right to be considered for remission is a legal right of the prisoner.
- However, the right to get remission is not a right of the prisoner.
- The very concept of remission lies on the mercy of the government and no one can claim a right to obtain mercy.
- Similarly, the principles of natural justice do not apply in case of granting remission to the prisoner.
Guidelines to exercise power of premature release of a convict
The Supreme Court has laid down the following guidelines that have to be followed by the Authority before exercising the power of premature release of the prisoner:
- Effect of the crime committed on the society;
- Chances of future recurrence;
- Potential of the convict to commit another crime;
- Socio-economic condition of the convict’s family.
Judicial Review – exercise of power of remission
- It is pertinent to note that the exercise of power of remission of sentence is not immune from judicial review.
- The Higher Judiciary may intervene in the exercise of power of remission in any of the following cases:
- Political vendetta;
- Party favoritism;
- Extraneous and mala fide factors;
- Class divide;
- Caste divide;
- However there can be justified classification of prisoner on basis of age, nature of offence, etc.
Stage when the power can be exercised – S.432(1)
- The power to grant remission can be exercised ‘at any time’ after the sentence is passed.
- However, the expression ‘at any time’ does not lead to the inference that the Government can exercise such power when the Court is hearing the appeal against conviction and sentence.
Opinion of the Court which passed the Sentence – S.432(2)
- Once the government receives the application for remission of sentence, it is duty bound to take the opinion of the Court/Judge who passed the order of conviction.
- If the said opinion is not taken, then any order of remission passed by the Government would be bad in law.
- However, non-compliance would not render the decision invalid for want of jurisdiction.
Conditional Remission – S.432(3)
- In case of breach of a condition under a conditional remission, such breach would not lead to revival of the sentence.
- It is open to the Government to decide whether the remission shall be canceled or not.
- If the Government decides to cancel the order of remission upon breach of condition, in such case the convict can be arrested by the Police without warrant and remanded to undergo the remaining part of the sentence.
- The condition has to be fulfilled by the person in whose favor the sentence has been remitted or independent of his will. – S.432(4)
Procedure for filing petition/application for remission – S.432(5)
- The government can provide rules governing the procedure of filing the petition for being considered for remission.
- The following conditions need to be fulfilled in case a petition is made on behalf of a male person above the age of 18:
- When the person is in jail, the petition shall be presented by the Jail Officer in charge; or
- Where the petition is filed by any other person and it contains a declaration that the person sentenced is in jail.
Appropriate Government – S.432(7)
- Central Government – Offence is against any law relating to a matter to which the executive power of the Union extends.
- State Government – In other cases, the Government of the State where the offender is sentenced or the order is passed.
- In order to ascertain the appropriate government the offence has to be seen in the backdrop of the three lists provided under the Seventh Schedule of the Constitution.
Judicial Function vis-à-vis Executive Function
- The Court cannot order a minimum period of imprisonment that a person shall undergo before he can be considered for granting remission.
- To decide the guilt or innocence of the accused is the domain of the Courts hence it is a judicial function.
- The executive’s power to grant pardon is in furtherance of executive functions, independent of the Courts power to pronounce on the innocence or guilt of the accused.
- Both the judicial and executive functions and powers are exercised in totally different arenas and they do not overlap or intersect each other.
Commutation of Sentence (S.433)
Meaning of Commutation of Sentence
- A commutation of sentence is a reduction in sentence. In a commutation of sentence, a person is not absolved from a conviction completely, but, his/her punishment is substituted with a lesser punishment.
- For example, a death sentence may be commuted to a sentence of imprisonment for life.
Scope of Power u/s. 433
- S.433 empowers the appropriate Government to commute the sentence of the convict.
- The said power can be exercised without the consent of the convict.
- The power of commutation of sentence is exclusively vested in the Appropriate Government and the High Court cannot direct the Govt. to exercise such power.
- Under this section a Governor can commute a sentence of death.
Duty to Dispose of Petitions Expeditiously
- The petitions for reprieve shall be disposed of without any unnecessary delay.
- Delays tend to shake confidence of the general public in the working of the executive.
- A self-imposed rule is followed by the authorities that such petitions shall be disposed of within a period of three months.
Power to Commute Sentences
The appropriate government may commute any of the following sentence in the prescribed manner:
- Death Sentence to any other punishment under IPC;
- Imprisonment for Life to Imprisonment not exceeding 14 years or fine;
- Rigorous imprisonment to Simple Imprisonment;
- Simple Imprisonment to Fine.
‘Lifers’ convicted of Capital Offences (S.433-A)
- S.433-A places restriction on powers of remission or commutation in certain cases.
- It puts a restrain on the unbridled powers of remitting the whole or any part of the punishment provided under section 432.
- Therefore, remission shall not be carried out in the below mentioned two categories until and unless the prisoner has under gone 14 years of actual imprisonment.
- S.433-A is not retrospective.
- 14 years of actual imprisonment is mandatory to grant exercise powers u/s. 432 or u/s. 433.
- The period spent on furlough would not be considered for computation under section 433-A
Need to Enact S.433-A
- Before enacting S.433-A prisoner who were convicted with offences having death sentence or serious offences used move scots free by earning remission after undergoing some part of the sentence.
- Taking cognizance of such utter laxity in the below mentioned two cases, the Parliament considered it prudent to enact S.433-A.
Application of S.433-A
- S.433-A applies to two categories of prisoners undergoing imprisonment for life:
- Prisoner sentences to imprisonment for life for an offence punishable with death or imprisonment for life; or
- Prisoner who was sentenced to death but the sentence was commuted to imprisonment for life under S.433(a)
- The common factor binding together the two categories of ‘lifers’ is the seriousness of offence of which they are convicted.
Constitutional Validity of S.433-A
- The section does not violate Article 72 & 161.
- It also not violative of Article 14 as it is based on reasonable classification.
- The Apex Court has held that S.433-A has been enacted by the Parliament under aegis of Entry 2 of List III of the Seventh Schedule r/w. Article 246.
Concurrent Powers of Central Govt. in case of Death Sentence – S.434
- Only in cases of death sentence, both the State Government and the Central Government have concurrent powers u/s. 432 and 433 to remit and commute the sentences respectively.
State Government to act after consultation with Central Government in Certain cases – S.435
In the following cases, the State Government shall act after consultation with the Central Government:
- Investigation – When the offence has been investigated by Delhi Special Police Establishment or any other agency empowered under a Central Act.
- Property – When the offence involves misappropriation or destruction of property belonging to the Central Government.
- Service – When the offence was committed by a person who was in the service of Central Government.
In all the above mentioned cases the State Government shall remit or commute the sentence after consultation with the Central Government.