Commutation of a sentence means the process of substituting the sentence provided by a competent with a lesser or lighter sentence. The head of the state has the supreme authority to exercise the executive power for granting pardon after taking into account several reasons and circumstances which may not be apposite for consideration before the courts.
There are various forms to show mercy to a convicted person, for instance, respite, reprieve, remission, pardon and commutation. Since the year of 2000, it was 2018 which recorded the highest of death penalties imposed by the trial courts i.e. 162 in total.
The year of 2018 was also unprecedented, witnessing a legislative expansion of capital punishment for non-homicidal offences, specifically for sexual violence inflicted upon children. Nonetheless, it was worthwhile to observe the Apex court commute 11 out of 12 death penalty cases it adjudicated in 2018.
On the other hand the Indian High courts commuted a total of 36 death sentences out of 58 to life imprisonments of different kinds. In a recent judgment Deepak Gupta J. had written a significant quote, “the mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies.”
Commutation of Sentence in Criminal Law
The framers were prudent enough to confer the Government with the power to commute a death sentence or life imprisonment and the primary reason stipulated by them was, “it is evidently fit that the Government should be empowered to commute the sentence of death for any other punishment provided by the Code. Many circumstances of which the executive authorities ought to be accurately informed, but which more often be unknown to the ablest judges, may, at particular times render it highly inconvenient to carry a sentence into effect.”
Section 433 of CrPC provides the concerned Government with a power to commute the:
- Death penalty to any other punishment warranted by IPC
- Life imprisonment forr than 14 years or fine
- From rigorous imprisonment to simple imprisonment for the term, he has been sentenced for
- simple imprisonment for a fine
The above provision has a restriction attached which is provided under Section 433A that says wherein a death sentence has been commuted into life imprisonment such person shall not be discharged from prison except he has remained in the prison at least for 14 years. Further, the power vested in the State Government by virtue of Section 433 shall be exercised after consulting the Central Government in certain cases where the sentence is provided for an offence enumerated hereunder:
- Offence involving destruction or misappropriation of any property that belongs to the Central Government
- Cases wherein the investigation was delegated to Delhi Special Police or any other body created by a Central Act
- Offence committed by an official of the Central Government while discharging his duties
In addition to that Section 435 contemplates that if the State Government and concurrently the Union are conferred with the authority to commute a sentence which was pronounced as separate terms of imprisonment to run concomitantly shall only have effect provided the Central Government passes an order regarding it.
In accordance with Section 434 of CrPC, the Central government has been conferred with power to commute a death sentence which is provided in Section 433 to State Government.
It is worthwhile to notice that Section 416 of CrPC is prudent to either postpone the death sentence of a pregnant woman or even commute to life imprisonment on an order by the High Court.
Section 54 of Indian Penal Code also provides for commutation of the death penalty, reading, that the concerned government has been conferred with the authority to commute the death penalty to any other punishment warranted by IPC. Commutation of life imprisonment can be done in accordance with Section 55 of IPC to the description for a term, not beyond 14 years. Aforementioned provisions do not require the consent of the offender.
It is worthwhile to note that the abovementioned provisions cannot be repudiated or altered at the behest of any statutory provision. The judiciary does not have the authority to scrutinize the Executives’ manner or decision of exercise of the power to grant pardon. In accordance to the judgment rendered by the Apex court in Kehar Singh v Union of India, judicial review of the President or Governor’s power to grant pardon is not covered by judicial review.
In the case of Shatrughan Chauhan v. Union of India, the Apex Court held that the courts may also check if the Executive examined all the relevant materials required while rendering a pardon. It also observed that failure to consider any superseding circumstances by the President or Governor while declining the requests for granting of pardon would be violative of Article 21 of the Constitution and would be enough a reason for the Court to commute the death penalty to life imprisonment.
These supervening circumstances would include delay in execution, insanity/mental illness/ schizophrenia, solitary confinement, reliance on judgments declared per incuriam and procedural lapses in the disposal of the request for pardon.
In consonance to Section 368 of CrPC, the death penalty awarded by the Court of Session may be confirmed by the High Court. The High Court also has the power to substitute the sentence by any punishment warranted by law, hold him guilty for any offence for which the Session court might not have convicted her and annul conviction and order for a new trial to take place or amended charge or even exonerate the accused person.
Procedure for Granting a Pardon
- It is the either the Apex court or the High court which concludes if capital punishment is to awarded or not contingent on the fact that no appeal has been filed by the accused or when the Apex court has not granted any special leave to the accused. Thereafter, a request may be filed to request for a pardon; in case of State it is to be filed for the approval by Governor and in case of Union Territories for president’s approval. [Article 72 and 161, Constitution]
- At the first instance, when a request is made to the Governor regarding grant of pardon and is rejected by the governor, then it must be immediately sent to the Secretary of the Government of India, Ministry of Home Affairs to seek the orders of the President.
- In the event of Union Territories, the plea for pardon submitted by a person awarded death penalty must be sent to the Chief Commissioner or Administrator or Lieutenant-Governor who must forward it to the Secretary to the Government of India, Ministry of Home Affairs, seeking orders of the President of India.
- The President of India is tendered with advice by the Ministry of Home Affairs on the question, whether to consider the granting of pardon submitted with him and the President is required to act in consonance with such advice.
- While granting a pardon consideration is not restricted to the evidence produced before the court, but may also call for an assessment of several other factors relevant for the sentencing like age, mental deficiency, sex, socio-economic circumstances, etc.
- The Executive has no prerogative to provide any reasons or grounds for the acceptance or rejection of the request for grant of pardon. The authority of the President or the Governor to grant or reject a plea of pardon is not judicial and would not amount to a breach of the former judicial order.
- A prisoner may file as many requests for pardon as he wants to, provided a substantial and new ground is appended in each plea for pardon. In its 35th report, the Law Commission of India opined that it was not prudent to enlist an exhaustive list of principles in consonance of which the Executive may commute the sentence.
In the Rajiv Gandhi assassination case, the death sentence of three accused had been commuted by the Apex court. Thereafter, the State of Tamil Nadu proposed to remit the life sentences and exonerate all the seven convicts. This proposal was challenged in the Apex court, and the Apex court construed several questions to the constitution bench of the court.
One of the questions was, if life imprisonment as read under Section 54 with Section 45 of the Indian Penal Code would mean imprisonment for the rest of the lifetime of the prisoner and if a special categorization can be made to include the cases where instead of awarding death sentence, imprisonment of the rest of lifetime of the prisoner barring any application of remission may be substituted.
The Apex Court observed that life imprisonment could only mean imprisonment for the rest of the life of the convict. The right to claim commutation, remission etc. as provided under Article 72 or Article 161 of the Constitution of India would always be present.
These were powers conferred by the Constitution in the Executive which were beyond the judicial powers of the Courts, and thus cannot be intervened with. Furthermore, to substitute death penalty a special category of the sentence was created and that was either life imprisonment or imprisonment for a term not longer than 14 years provided beyond the application of remission or depending on the adjudication of the High Court or the Supreme Court.
In the case of Swamy Shraddhananda v State of Karnataka had to stipulate the meaning of “life imprisonment” in cases wherein the death penalty has been commuted to life imprisonment. The defendant, in this case, had been found to be guilty under Section 302 and 201, IPC and was thereby sentenced to death. After the High court affirmed the sentence, an appeal was made to the Apex court wherein the judges were of the prudence that imprisonment for life would serve the ends of justice better than capital punishment.
The judges lucidly pronounced that the accused to not be released until death. The judges said that the accused can be released at no point of his lifetime as the same would require an order of commutation under Section 55, IPC or Section 433, CrPC or pardon under Article 72 or 161 of the Indian Constitution.
In a recent case Jagdish v. State of Madhya Pradesh, the Apex court has commuted the death penalty of a convict who had been found guilty of murdering his wife and five children. The court observed that it had reiterated time and again that cases wherein death penalty has to be executed, the same must be executed expeditiously and since in this particular case the mercy plea had not been forwarded for 4 years without providing any grounds the court rightly opined,
“there not only was there a long, inordinate and unexplained delay on the part of the State of Madhya Pradesh but to make matters worse, the State of Madhya Pradesh has not even cared to file any counter affidavit in the Writ Petition even though notice was issued 4 years back on 18.11.2014 and service was effected within a month of issuance of notice.”
Considering the brutality of the crime that the convict was punished with the court while commuting the death sentence to life imprisonment observed that life imprisonment to mean the remaining lifetime of the convict.
Commuting the sentence provided by a competent court might sound one of the noblest prerogatives of a sovereign, however, it also defeats the entire purpose and reasoning behind the court which had all the competence to declare the sentence. Further, at the sentencing stage, one of the mitigating factors that are taken into account to commute the death penalty is the mental health of the accused while he committed the crime.
It is worthwhile to note that mental illness and intellectual disability are still certain facets which remain undeveloped in the Indian criminal jurisprudence. Pertaining to mental health we have two diametrically opposite judgement, one was rendered in Amrit Bhushan Gupta v Union of India resulting in the execution of death penalty and the other in Shatrughan Chauhan v Union of India which resulted in the commutation of the death penalty.
 Jagdish v. State of Madhya Pradesh,  SCC OnLine SC 250
 Code of Criminal Procedure (Amendment) Act, 1978
 Maru Ram v. Union of India  1 SCC 107
 (1989) 1 SCC 204
 Union of India v. Sriharan Murugan and Ors,  7 SCC 1
  13 SCC 767
  SCC OnLine SC 250
 1977 AIR 608
  3 SCC 1