Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P., (1997) 3 SCC 287, quoted George Bernard Shaw the famous satirist who said, “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” According to him, humanity today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence.
Further, quoting a British Buddhist-Christian Judge, it was observed that in the context of karuna (compassion) and punishment for karma (bad deeds), ‘The two things are not incompatible. While an accused is punished for what he has done, a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful must be deserved. This is what compassion is about.’
Articles 72 and 161
Articles 72 and 161 deal with clemency powers of the President of India and the Governor of a State, and also include the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences in certain cases. The power under Article 72 inter alia extends to 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 and in all cases where the sentence is a sentence of death.
Article 161 states that the Government 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. It was observed in the said judgment that the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be fettered by any statutory provision, such as, Sections 432, 433 or 433-A of the CrPC or by any prison rule.
It was further observed that a pardon is an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender. But pardon has to be distinguished from “amnesty” which is defined as a “general pardon of political prisoners; an act of oblivion”. An amnesty would result in the release of the convict but does not affect disqualification incurred, if any.
‘REPRIEVE’ means a stay of execution of a sentence, a postponement of a capital sentence.
‘RESPITE’ means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. It is something like a release on probation for good conduct under Section 360 of the CrPC.
Remission
On the other hand, ‘REMISSION’ is reduction of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it. Commutation is change of a sentence to a lighter sentence of a different kind. Section 432 CrPC empowers the appropriate Government to suspend or remit sentences.
Further, a remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted.
An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is.
The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court.
According to Weater’s Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment.
Supreme Court’s Judgment
The following judgments of this Court are apposite to the concept of remission:
(a) In Maru Ram[1], a Constitution Bench considered the validity of Section 433-A of the CrPC. Krishna Iyer, J. speaking for the Bench observed,
“Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at the point where the subtraction results in zero”. However, “when it comes to life imprisonment, where the sentence is indeterminate and of an uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration.
(i) Referring to Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, it was observed that the said judgment is an authority for the proposition that a sentence of imprisonment for life is one of “imprisonment for the whole of the remaining period of the convicted person’s natural life”, unless the said sentence is committed or remitted by an appropriate authority under the relevant provisions of law.
(ii) In Gopal Vinayak Godse, a distinction was drawn between remission, sentence and life sentence. Remission limited a time, helps computation but does not ipso jure operate as release of the prisoner. But, when the sentence awarded by the Judge is for a fixed term, the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of sentence intact. However, when the sentence is a life sentence, remissions, quantified in time, cannot reach a point of zero.
Since Section 433-A deals only with life sentences, remissions cannot entitle a prisoner to release. It was further observed that remission, in the case of life imprisonment, ripens into a reduction of sentence of the entire balance only when a final release order is made. If this is not done, the prisoner will continue in custody.
The reason is, that life sentence is nothing less than life long imprisonment and remission vests no right to release when the sentence is life imprisonment. Nor is any vested right to remission cancelled by compulsory fourteen years jail life as a life sentence is a sentence for whole life.
(iii) Interpreting Section 433-A it was observed that there are three components in it which is in the nature of saving clause.
Firstly, the CrPC generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area, the latter law will be saved and will prevail, such as short sentencing measures and remission schemes promulgated by various States.
The third component is, if there is a specific provision to the contrary then, whether it would override the special or local law.
It was held that Section 433-A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to aparticularized treatment. Therefore, Section 433-A applies in preference to any special or local law. This is because Section 5 of the CrPC expressly declares that specific provision, if any, to the contrary will prevail over any special or local law.
Therefore, Section 433-A would prevail and escape exclusion of Section 5. The Constitution Bench concluded that Section 433- A is supreme over the remission rules and short-sentencing statutes made by various States. Section 433-A does not permit parole or other related release within a span of fourteen years.
(iv) It was further observed that criminology must include victimology as a major component of its concerns. When a murder or other grievous offence is committed the victims or other aggrieved persons must receive reparation and social responsibility of the criminal to restore the loss or heal the injury which is part of the punitive exercise which means the length of the prison term is no reparation to the crippled or bereaved.
(v) Fazal Ali, J. in his concurring judgment in Maru Ram observed that crime is rightly described as an act of warfare against the community touching new depths of lawlessness. According to him, the object of imposing deterrent sentence is three-fold. While holding that the deterrent form of punishment may not be a most suitable or ideal form of punishment yet, the fact remains that the deterrent punishment prevents occurrence of offence. He further observed that Section 433-A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other hand protects the society from harm and distress caused to innocent persons.
While opining that where section 433-A applies, no question of reduction of sentence arises at all unless the President of India or the Governor of a State choose to exercise their wide powers under Article 72 or Article 161 of the Constitution respectively which also have to be exercised according to sound legal principles as, any reduction or modification in the deterrent punishment would, far from reforming the criminal, be counter-productive.
(b) Mohinder Singh[2] is a case which arose under Section 432 on remission of sentence in which the difference between the terms `bail’, `furlough’ and `parole’ having different connotations were discussed.
It was observed that FURLOUGHS are variously known as temporary leaves, home visits or temporary community release and are usually granted when a convict is suddenly faced with a severe family crisis such as death or grave illness in the immediate family and often the convict/inmate is accompanied by an officer as part of the terms of temporary release of special leave which is granted to a prisoner facing a family crisis.
PAROLE is a release of a prisoner temporarily for a special purpose or completely before the expiry of the sentence or on promise of good behaviour. Conditional release from imprisonment is to entitle a convict to serve remainder of his term outside the confines of an institution on his satisfactorily complying all terms and conditions provided in the parole order.
(c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347, it was observed that parole is a professional release from confinement but it is deemed to be part of imprisonment. Release on parole is a wing of reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus, a grant of partial liberty or lessening of restrictions to a convict prisoner but release on parole does not change the status of the prisoner.
When a prisoner is undergoing sentence and confined in jail or is on parole or furlough his position is not similar to a convict who is on bail. This is because a convict on bail is not entitled to the benefit of the remission system. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. Therefore, such a prisoner who is on bail is not entitled to get remission earned during the period he is on bail.
Provisions of CrPC on Remission
Apart from the constitutional provisions, there are also provisions of the CrPC which deal with remission of convicts. Sections 432, 433, 433A and 435 of the CrPC are relevant and read as under:
“432. Power to suspend or remit sentences.—
(1) 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.
(2) 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.
(3) If any condition 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.
(4) 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.
(5) 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:
Provided 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—
(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
(6) 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 imposes any liability upon him or his property.
(7) In this section and in Section 433, the expression “appropriate Government” means,—
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
433. Power to commute 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 (45 of 1860);
(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.
433A. Restriction on powers of remission or commutation in certain cases.—
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 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.
435. State Government to act after consultation with Central Government in certain cases.—
(1) The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence—
(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(c) 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, shall not be exercised by the State Government except after consultation with the Central Government.
(2) 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.”
Sub-section (1) of Section 432 is an enabling provision which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition 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.
The pertinent provision involved in this case is sub-section (2) which deals with an application made to the appropriate Government for the suspension or remission of a sentence and 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.
Sub-section (3) deals with cancellation of the suspension or remission in the event of there being any non-fulfilment of any condition imposed by the appropriate Government whereupon the person in whose favour the sentence has been suspended or remitted, may be arrested by the police officer, without warrant and remanded to undergo the unexpired portion of the sentence, if such a person is at large.
Subsection (4) states 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. 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 vide sub-section (5) of Section 432 of the CrPC.
The proviso to sub-section (5) states 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 it is presented through the officer in-charge of the jail; or where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
Sub-section (6) of Section 432 states that the provisions of this Section would apply to any order passed by a Criminal Court under any section of the CrPC or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
The expression “appropriate Government” used in Section 432 as well as in Section 433, is defined in sub-section (7) of Section 432. It expresses that in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; and in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
SECTION 433-A IS A RESTRICTION ON THE POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES. It begins with a non-obstante clause and states 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 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 states that the powers conferred by Sections 432 and 433 upon the State Government may in case of sentences of death also be exercised by the Central Government concurrently.
The necessity for the State Government to act in consultation with the Central Government in certain cases is mandated in Section 435. The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence
(a) 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 the CrPC, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(c) 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, shall not be exercised by the State Government except after consultation with the Central Government.
Sub-section (2) of Section 435 states 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.
Reference
Bilkis Yakub Rasool v. Union of India (2023)
[1] Maru Ram vs. Union of India, AIR 1980 SC 2147
[2] State of Haryana vs. Mohinder Singh, (2000) 3 SCC 394