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Short Sentencing Scheme in India: Constitutional and Statutory Approach

by Ritesh KumarDecember 28, 2017

INTRODUCTION

Short sentencing means the remission, commutation, respite, or reprieve of the sentence by the President, Governor, Central Government and State Government to the prisoners upon whom the sentence is imposed. The provisions related to the short sentencing are contained in the Constitution of India, the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. Sentencing is always a matter of judicial discretion subject to any mandatory minimum prescribed by law.[1] It can be said that punishment is the suffering in person or property inflicted by the society on the offender who is adjudged guilty of crime under the law.[2]

Sentencing or Punishment is good since it is corrective, deterrent and necessary for the public welfare. The objectives of sentencing or punishment are not always deterrent but reformative and preventive. The Supreme Court said that the basic principle of punishment or sentencing is that “guilty must pay for his crime” should not be extended to the extent that punishment becomes brutal.[3]The matter of sentencing or punishment is required to be examined keeping in view modern reformative concept of punishment. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal.[4]

SHORT SENTENCING: MEANING AND SCHEME

Before discussing the meaning and scheme of short sentencing it is necessary to first to know about the sentencing policy. There is no uniform sentencing policy in India and sentences reflect the individual philosophy of the judges. The sentencing policy has been explained by the Supreme Court in the case of State v. Sanjeev Nanda[5], that it has to be proportional to gravity of offence, so that it must afford sufficient deterrence and protect public from crime. The essential thrust of sentencing policy is that the reformation should be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of convicted prisoners.[6]

Now we discuss the meaning of short sentencing. Short sentencing may be defined as a remission, commutation, respite, or reprieve of the sentence by the President, Governor, Central Government and State Government to the prisoners upon whom the sentence is imposed but powers of the President, the Governor, the Central Government and the State Government are subjected to the provisions of the Constitution of India because the Constitution is the supreme law in India. Short sentencing is a matter of justice and its scheme has been supported by wise public policy, however, it cannot be treated as a privilege of the State or a right of the convict. Short sentencing scheme is not for the benefit of the convict only but also for the welfare of the people. So, it can be said that the short sentencing scheme has to be applied in the best interest of society. The remission policy manifest a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated.

Scheme of short sentencing can be divided into two different approaches which are as follows:-

  • Constitutional Approach
  • Statutory Approach

The constitutional and statutory approaches towards the short sentencing scheme are explained in details hereunder:-

CONSTITUTIONAL APPROACH TOWARDS THE SHORT SENTENCING SCHEME

The provisions related to short sentencing scheme under the Constitution of India are contained in Articles 72 and 161 which are deals with the pardoning power of the President and the Governor respectively. The power of pardon provided to President and Governor under Articles 72 and 161 respectively can achieve its purpose only when they are exercised with a sense of responsibility. The purpose of Articles 72 and 161 is to provide a human touch to the judicial process.[7] Broadly speaking that the object of pardoning power is to correct possible judicial errors, for, no system of judicial administration can be free from imperfections.[8] It is an attribute of sovereignty wherever the sovereignty may be to release a convict from a sentence which is mistaken, harsh or disproportionate to the crime. For the purpose of better understanding, the constitutional approach towards the short sentencing scheme can be divided into following categories:-

  • Pardoning power of President (Article 72) and Governor (Article 161)
  • Comparison between Articles 72 and 161
  • Pardoning power subject to judicial review and its limitation
  • Inordinate or unusual delay in pardoning

Now we discuss above points in details one by one as follows:-

Pardoning power of President (Article 72) and Governor (Article 161)

Articles 72 and 161 of the Constitution of India deals with the pardoning power of President and Governor respectively. Both these Articles first refer to the power to grant pardons, reprieves, respites or remissions of punishment, and then to the power to suspend, remit or commute the sentence of any person convicted of any offence. Clause (1) of Article 72 of the Indian Constitution says that 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 –

  1. in all cases where the punishment or sentence is by a Court Martial;
  2. 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;
  3. in all cases where the sentence is a sentence of death.

Here it is necessary to know about the meaning of the terms ‘pardon’, ‘reprieve’, ‘respite’, ‘remission’, and ‘commutation’. The term ‘pardon’ means an act of mercy, forgiveness, clemency. The concept of pardon is an artifact of older times, of an age where an omnipotent monarch possessed the power to punish or remit any punishment.[9] The term ‘reprieve’ means temporary suspension of death sentence, e.g., pending a proceeding for pardon or commutation. The term ‘respite’ means awarding a lesser punishment on some special grounds, e.g., the pregnancy of a woman offender. The term ‘remission’ means reduction of the amount of sentence without changing its character, e.g., a sentence of one year may be remitted to six months. And finally the term ‘commutation’ means exchange of one thing for another. Here it means substitution of one form of punishment for another of a lighter character, e.g., for rigorous imprisonment-simple imprisonment.[10]In the case of Epuru Sudhakar v. Govt. of A.P.[11], the Court has held that pardons, reprieves and remissions are manifestation of the exercise of prerogative power and these are not act of grace.

It has been further provided under Clause (2) of Article 72 that nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. Clause (3) of the Article 72 says that nothing in sub-clause (c) 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.

Article 161 of the Indian Constitution provides for the pardoning power of Governor. It says 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.

In exercising the pardoning power the Governor or the President act and must act not on their own judgement but in accordance with the aid and advice of their Council of Ministers.[12] The power of President and Governor to grant remission of sentence is absolute and unfettered.[13] The clemency procedure under Articles 72 and 161 of the Constitution provides a ray of hope to the condemned prisoners and his family member; therefore it is to be exercised within reasonable time.[14] In the case of State of Haryana v. Bhup Singh[15], it has been held that power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not in any way, wipe out the conviction. An act of clemency under Articles 72 and 161 of the Constitution commutes the sentence itself. In the significant case of K.M. Nanavati v. State of Bombay[16], it has been held that the Governor’s power to suspend sentence under Article 161 is subject to the rules made by the Supreme Court under Article 145 for disposal of pending appeals before it.

It is significant to discuss here one more important question i.e., whether considerations of public policy and humanitarian impulses support the concept of short sentencing scheme. The answer is in affirmative because it merely gives an opportunity to the convict to reintegrate into society. The modern penology with its correctional and rehabilitative basis emphasises the exercise of such power be made as a means of infusing mercy into the justice system.

In the case of Mahendra Nath Das v. Union of India[17], it was held that if during pendency of mercy petition President/Governor was changed, omission to make a mention of the order and consideration by the predecessor to incumbent President/Governor will amount that he was not properly advised and assisted in the disposal of petition filed by appellant. Such omission/failure would make disposal of mercy petition liable for quashment.

Comparison between Articles 72 and 161

Both the President and Governor enjoy the pardoning power under Articles 72 and 161 respectively under the Constitution. Following are the differences between the pardoning powers of the President and the Governor:-[18]

  • The President has the power to grant pardon, reprieve, respite, suspension, remission or commutation in respect of punishment or sentence by Court Martial whereas the Governor has no such power.
  • The President can exercise his power where the punishment or sentence is for an offence against a law relating to a matter to which the executive power of the union extends but the Governor can exercise his power where the punishment or sentence is for an offence against a law relating to a matter to which the executive power of the State extends (except as to death sentence).
  • The President has power to grant pardon in the case of sentence of death whereas the Governor has no power to pardon in case of sentence of death but the power to suspend, remit or commute a sentence of death, if conferred by law, remains, unaffected. In other words it can be said that though the governor has no power to grant pardon in case of sentence of death but in respect of suspension, remission and commutation of sentence of death, both the President and Governor have concurrent power.

Pardoning power subject to judicial review and its limitation

In the significant case of Epuru Sudhakar v. Govt. of A.P.[19], the Supreme Court has held that the pardoning power of the President under Article 72 and the Governors under Article 161 is subject to judicial review. Pardoning power cannot be exercised on the ground of caste, religion or political considerations and if the pardoning power has been exercised on the ground of caste, religion or political considerations it would amount to violation of the Constitution and the Court will examine its validity. The power of pardon cannot be exercised arbitrarily. In Kuljeet Singh v. Lt. Governor of Delhi[20], it was held that the exercise of the President’s power under Article 72 will be examined on the facts and circumstances of each case. The Court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the executive.

In the leading case of Kehar Singh v. Union of India[21], the Supreme Court ruled that the power of pardon of the President under Article 72 is of the “widest amplitude” and can contemplate a myriad kinds of categories of cases with facts and situations varying from case to case. The President cannot be asked to give reasons for this order. The power of pardon is part of the constitutional scheme. The order of the President cannot be subjected to judicial review on its merits.

Now we discuss the limitations on judicial review of pardoning power. It is well established principle that the power exercised under Article 72/161 of the Constitution could be subject matter of limited judicial review. In the case of Devinder Pal Singh Bhullar v. State (NCT of Delhi)[22], it was held that while examining challenge to the decision taken by Governor under Article 161 or by the President under Article 72 of the Constitution as the case may be, the Court’s power of judicial review of such decision is very limited. The Court can interfere if it is found that the decision has been taken without application of mind to the relevant factors or the same is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness.

In a significant case of Epuru Sudhakar v. Govt. of A.P.[23], the Court held that the orders under Articles 72/161 could be challenged on the following grounds:-

  • That the order has been passed without application of mind,
  • That the order is mala fide,
  • That the order has been passed on extraneous or wholly irrelevant considerations,
  • That the relevant materials have been kept out of consideration, and
  • That the order suffers from arbitrariness.

Inordinate or unusual delay in pardoning

An important question is arisen in the discussion of pardoning power of President and Governor i.e., whether a convict may claim pardon as a matter of right on the ground of inordinate or unusual delay in disposing mercy petition. This question is resolved by the Supreme Court in the case of Sher Singh v. State of Punjab[24], the Court held that the mercy petition under Articles 72 and 161 of the Constitution must be disposed of expeditiously. Chandrachud C.J. said that “a self-imposed rule should be followed by the executive authorities vigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in a very system of justice.

STATUTORY APPROACH TOWARDS THE SHORT SENTENCING SCHEME

For the purpose of better understanding, the statutory approach towards the short sentencing scheme can be divided into following two categories:-

  • Short sentencing scheme under the Indian Penal Code, 1860.
  • Short sentencing scheme under the Code of Criminal Procedure, 1973.

Short sentencing scheme under the Indian Penal Code, 1860:-

The provisions related to short sentencing scheme under the Indian Penal Code, 1860 are contained in Sections 54 and 55 which are deals with the commutation of sentence of death and commutation of sentence of imprisonment for life respectively. Both these Sections do not use the term “pardoning of sentence” but use the term “commutation”. Section 54 of IPC says that 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.

Section 55 of IPC says that 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.

It is important to know the meaning of the term “appropriate government”. According to Section 55-A of IPC, the term “appropriate government” means in case where sentence relates to a matter to which executive power of the Union extends, the Union Government and where sentence relates to a matter to which executive power of the State extends, the particular State Government.

Commutation of sentence under Sections 54 and 55 of IPC is a discretionary power of the government. The offender cannot claim it as a matter of right. It should be noted that short sentencing policy under the provisions of IPC and Cr.P.C. brings about a mere reduction in the period of imprisonment or changing of death sentence into a term of imprisonment whereas the pardoning powers under Articles 72/161 commutes the sentence itself.[25]

Short sentencing scheme under the Code of Criminal Procedure, 1973:-

The provisions relating to short sentencing scheme under Cr.P.C. are ancillary to the pardoning powers of the President under Article 72 and the Governor under Article 161 of the Constitution of India. Sections 432, 433, 433-A, 434 and 435 of Cr.P.C. deals with the provisions relating to short sentencing scheme. Section 432 of Cr.P.C. deals with the power of appropriate government to suspend or remit sentences. Before dealing with the Section it is necessary to know the meaning of the term “appropriate government”. According to Sub-section (7) of Section 432 of Cr.P.C., the term “appropriate government” means-

  1. In cases where the sentence is for an offence against, or the order referred to in sub-section (6) (i.e., the order passed by a Criminal Court under any Section of this Code or of any other law which restricts the liberty of any person or impose any liability upon him or his property) is passed under, any law relating to a matter to the executive power of the Union extends, the Central Government;
  2. In other cases, the government of the State within which the offender is sentenced or the said order is passed.

Now we discuss about Section 432 of Cr.P.C. i.e., deals with the power of appropriate government to suspend or remit sentences. Section 432 (1) of Cr.P.C. says that when any person has been sentenced to punishment for an offence, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Section 432 (2) of Cr.P.C. says that whenever an application is made to the appropriate government for the suspension or remission of a sentence, the appropriate government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

Section 432 (3) of Cr.P.C. says that if any conditions on which a sentence has been suspended or remitted is, in the opinion of the appropriate government, not fulfilled, the appropriate government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. Further Section 432 (4) of Cr.P.C. says that the condition on which a sentence is suspended or remitted under this Section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

Again in Section 432 (5) of Cr.P.C. it has been provided that the appropriate government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with. Proviso of this Section provides that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

  1. Where such petition is made by the person sentenced, it is presented through the officer-in-charge of the jail; or
  2. Where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

Further in Section 432 (6) of Cr.P.C. it has been provided that the provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any Section of this Code or of any other law which restricts the liberty of any person or impose any liability upon him or his property.

Section 433 of Cr.P.C. deals with power of appropriate government to commute sentence. It says that the appropriate government may, without the consent of the person sentenced, commute-

  1. A sentence of death, for any other punishment provided by the Indian Penal Code, 1860;
  2. A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
  3. A sentence for rigorous imprisonment, for simple imprisonment for any term of which that person might have been sentenced, or for fine;
  4. A sentence of simple imprisonment, for fine.

Section 433-A of Cr.P.C. says that notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death is imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

Section 434 of Cr.P.C. says that the powers conferred by Sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government. Section 435 of Cr.P.C. deals with the conditions in which the powers conferred by Sections 432 and 433 of Cr.P.C. upon the State Government to remit or commute a sentence requires consultation of the Central Government. As per Sub-section (1) of Section 435 of Cr.P.C., following are the cases in which the State Government requires consultation of Central Government:-

  1. Where the sentence is for an offence which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
  2. Where the sentence is for an offence which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
  3. Where the sentence is for an offence which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty.

Sub-section (2) of Section 435 of Cr.P.C. says that no order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.

RELATION BETWEEN CONSTITUTIONAL AND STATUTORY PROVISIONS TOWARDS THE SHORT SENTENCING SCHEME

The statutory provisions related to the short sentencing scheme are subject to the constitutional scheme and is subordinate to the Constitution and cannot override the constitutional provisions. The power under Articles 72 and 161 is constitutional mandate which is supreme. It can be said that the pardoning power under Articles 72 and 161 is absolute and remains unfettered for the reason that the provisions contained under Articles 72 and 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A of Code of Criminal Procedure. The power of the President under Article 72 and the Governor under Article 161 cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.[26]

In the significant cases of Maru Ram v. Union of India[27], Bhagirath v. Delhi Administration[28], Kehar Singh v. Union of India[29] and Mohinder Singh v. State of Punjab[30], the Supreme Court has explained the relationship between constitutional and statutory provisions in relation to the short sentencing scheme and propound the following things:-

  • Section 433-A of Cr.P.C. denied premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of capital offence, i.e., exceptional serious crime.
  • Section 433-A of Cr.P.C. cannot and does not in any way affect the constitutional power conferred on the President/Governor under Articles 72 and 161 of the Constitution.
  • Remission rules have a limited scope and in case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section 433-A of Cr.P.C. or in exercise of constitutional power under Articles 72 and 161 of the Constitution.
  • The exercise of power under Sections 432 and 433 of the Code of Criminal Procedure is available to the appropriate government even if it is availed earlier and exercised under Article 72 of the Constitution by the President or under Article 161 by the Governor.

CONCLUSION

Short sentencing scheme is for the benefit of the convicted person as well as for the welfare of the people and the authorities while applying this scheme it is necessary to keep in their mind the constitutional and statutory provisions. It is to be noted that power exercised under Articles 72/161 of the Constitution could be subject matter of limited judicial review. The power under Articles 72 and 161 is constitutional mandate which is supreme over the statutory provisions. Short sentencing policy under the provisions of IPC and Cr.P.C. brings about a mere reduction in the period of imprisonment or changing of death sentence into a term of imprisonment whereas the pardoning powers under Articles 72/161 commutes the sentence itself. It can be said that the considerations of public policy and humanitarian impulses support the concept of short sentencing scheme.

ENDNOTES

[1] R. Chakravarty v. State of M.P., 1976 Cri. L.J. 334.

[2] Prof S.N. Misra, Indian Penal Code 137 (Central Law Publications, Allahabad, 19th ed., 2013).

[3] State of Haryana v. Jagdish, AIR 2010 SC 1690.

[4] Ram Naresh Choudhary, O.P. Srivastava’s Principles of Criminal Law 161 (Eastern Book Company, Lucknow, 6th ed., 2013).

[5] AIR 2012 SC 3104.

[6] K I Vibhute, P S A Pillai’s Criminal Law 274 (LexisNexis, Haryana, 12th ed., 2014).

[7] J.P. Rai, “Exercise of Pardoning Power in India: Emerging Challenges” XII The NEHU Journal 1 (2014).

[8] Dr. Durga Das Basu, Introduction to the Constitution of India 199 (LexisNexis, Haryana, 21st ed., 2013).

[9] J.P. Rai, “Exercise of Pardoning Power in India: Emerging Challenges” XII The NEHU Journal 1 (2014).

[10] Dr. J.N. Pandey, Constitutional Law of India 470 (Central Law Agency, Allahabad, 50th ed., 2013).

[11] AIR 2006 SC 3385.

[12] Maru Ram v. Union of India, (1981) 1 SCC 107.

[13] State of Haryana v. Jagdish, AIR 2010 SC 1690.

[14] V. Sriharan v. Union of India, AIR 2014 SC 1368.

[15] AIR 2009 SC 1252.

[16] AIR 1961 SC 112.

[17] (2013) 6 SCC 253.

[18] Dr. Durga Das Basu, Introduction to the Constitution of India 199-200 (LexisNexis, Haryana, 21st ed., 2013).

[19] AIR 2006 SC 3385.

[20] AIR 1982 SC 774.

[21] AIR 1989 SC 653.

[22] (2013) 6 SCC 195 (249).

[23] AIR 2006 SC 3385.

[24] AIR 1983 SC 361.

[25] State of Haryana v. Jagdish, AIR 2010 SC 1690.

[26] Ram Naresh Choudhary, O.P. Srivastava’s Principles of Criminal Law 180 (Eastern Book Company, Lucknow, 6th ed., 2013).

[27] AIR 1980 SC 2147.

[28] AIR 1985 SC 1050.

[29] AIR 1989 SC 653.

[30] (2013) 3 SCC 294.

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Ritesh Kumar
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