The recent early release of 11 convicts on August 15, 2022, who were sentenced to life imprisonment for raping a five-month pregnant woman and murdering seven members of her family (Bilkis Bano case), has sparked outrage among the masses over the quantum of punishment they received for such heinous crimes.
It also casts a shadow of doubt over the prescribed punishment for such atrocious and abominable offences under the criminal justice system. Moreover, it begs the question of how, for the same offence, the punishment can range from the death penalty (as in the Delhi gang rape case) to just fourteen years of imprisonment in the instant case.
This law article clears up these issues by simplifying the laws of remission and commutation of sentences.
What Is Remission and Commutation of Sentence?
Awarding sentences and punishment is not the sole prerogative of the courts and judges in India. The power of the executive in these matters has also been recognized constitutionally and statutorily. The executive may use these powers to grant pardon or remit, commute, respite, or reprieve any sentence or punishment imposed by a court of justice. All these terms have different meanings.
When a sentence is pardoned, both the conviction and sentence are set aside, and no disqualification is attached to the convict. It means it would be taken as if no offence was committed by the person concerned.
Commutation changes the nature of the sentence to a lighter one. To illustrate, a sentence of death may be turned into life imprisonment or a sentence of rigorous imprisonment into a simple sentence.
In the case of remission, the nature or character of the sentence remains the same; however, the term is reduced. Here, a sentence of life imprisonment may be reduced to fourteen years.
Reprieve also denotes awarding a lesser sentence but on the grounds of physical disability or pregnancy of the convict.
Respite simply stays the execution of a sentence for a temporary period to prefer an appeal in sentences of death or to seek the commutation or remission of sentence.
It is to be noted here that the executive exercises the above powers not fancifully or arbitrarily but reasonably and with statutory limitations, as are discussed in the later sections.
Statutory Provisions to Remit the Sentence
The power of remission has been recognized under the Constitution of India, the Indian Penal Code of 1860 (IPC), the Code of Criminal Procedure of 1973 (CrPC), and the Prisons Act of 1894.
Under Article 72 and Article 161, the Constitution bestows on the President and the Governors of the state, respectively, the pardoning and the above-mentioned related powers.
In the CrPC, these powers (related to remission and commutation of sentence) are mentioned under sections 432 to 435, and in the IPC, under sections 54 and 55, and are to be exercised by the appropriate government. While the IPC serves as a substantive source of these powers, the CrPC prescribes the procedure to exercise these powers, like the opinion of the judge who passed the sentence that is to be taken, the grounds upon which such a decision is to be formed, etc.
The Prisons Act prescribes a remission system based upon certain rules that specify how marks are to be awarded for prisoners based upon which their sentence shall be remitted. The purpose is essentially to reform the prisoners.
Related Law Notes:
- What Are the Pardoning Powers of the Indian President
- Pardoning Powers of the Governor With the Latest Updates and Judgements
- What Are the Differences in Pardoning Powers of the Indian President (Article 72) and the State Governors (Article 161)?
- Mercy Petition – Articles 72 and 161 of the Constitution of India
Difference: Power of Remission and Commutation Under the Constitution, CrPC, and IPC
Here are the differences between the constitutional and statutory provisions relating to the exercise of the above-mentioned powers.
1. Exercise of Power by the Different Authorities
The difference between the constitutional and statutory provisions relating to the exercise of the power of remission and commutation is that, first, under the Constitution, the power is exercised by the President or the Governor, as the case may be, while under the statutes, the powers are exercised by the appropriate government, determined as per section 55A of the IPC or section 432 of the CrPC.
However, the said difference is only chimerical (doesn’t exist in the real sense) or illusionary in nature. Because a parliamentary form of government like India’s doesn’t allow the President or the Governor to take independent decisions, they are instead bound to act upon the advice of the Council of Ministers.
The Supreme Court has repeatedly, through its judgements in Maru Ram vs Union of India, Shamsher Singh vs State of Punjab, and most recently in A.G. Perarivalan vs State of Tamil Nadu, unequivocally clarified the law on this subject by pronouncing that the President or the Governor, while discharging their clemency (mercy) powers under the Constitution, are bound by the advice of the Council of Ministers whether they like it or not. Therefore, either way, it would be the appropriate government that discharged this power.
2. One Provides the Substance and the Other the Procedure
The second and real difference would be that constitutional power is a kind of substantive provision based upon the reformative theory of the criminal justice system. It is the mandate of the Constitution. The CrPC, or the statute, on the other hand, prescribes the procedure to exercise that power.
3. The Power Is Subject to Different Limitations
The third and most significant difference is with respect to the amount of limitation imposed in exercising these powers. The Highest Court explained it in the case of the State of Haryana & Ors. vs Rajasthan Kumar and Bittu. The court clarified that constitutional power is a power of the sovereign, and no conditions are attached to it while exercising the same. However, when the power is exercised by the state government under the CrPC (section 432 or section 433), it is bound by the limitations given under section 433A of the CrPC, which allows remission of sentence only when the prisoner has served at least 14 years of imprisonment in certain circumstances. Additionally, there are certain other circumstances when this power of remission can’t be exercised, and in those cases, “life imprisonment” shall mean imprisonment for the remainder of the natural life of the convicted person. For example, offences committed under sections 370, 376(2), 376AB, 376D, 376DA, and 376DB of the IPC.
However, it doesn’t mean that the President or the Governor enjoy unfettered pardoning powers. The apex court has limited the same in Epuru Sudhakar vs State of Andhra Pradesh by putting it through the filter of judicial review and holding that the exercise of this power is not the fancy or frown of government but must reflect reason, relevance, and reformation.
The criminal justice system of India follows some basic tenets that are in sync with the Indian Constitution and criminal jurisprudence. Majorly based upon two of these principles, the early release of convicts of the Bilkis Bano case has been justified.
The first principle is the principle of protection against ex post facto law. It requires that a criminal law not have a retrospective effect. Therefore, when two remission policies are in force, the policy which is to be considered is when the offence was committed and not what was implemented later on.
Another is the reformative purpose of punishment, which requires that prisoners be given a chance for reformation.
Whatever the government uses to justify its position, the use of remission powers must be reasonable and sound if the public’s trust in the criminal justice system is to be maintained. Furthermore, justice must not only be done but also appear to be done.