[mks_dropcap style=”letter” size=”52″ bg_color=”#ffffff” txt_color=”#dd8706″]D[/mks_dropcap]eath penalty has constantly been criticized for being inhuman punishment. It is contended that a civilized society does not require this kind of punishment.
Indian criminal justice system retains capital punishment or death penalty for certain serious offences. At the same time, it contains provisions for commutation of punishments as well. Commutation simply means alteration, change, exchange or substitution. Commutation of punishment means reducing the quantum of prescribed punishment. Section 54 of the Indian Penal Code 1860 provides for commutation of sentence of death. It reads as under: Commutation of sentence of death.- 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 55A defines appropriate Government. It reads as under:-
Definition of “appropriate Government-In sections 54 and 55 the expression “appropriate Government” means,-
(a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and
(b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.
Our procedural law also has scope for commutation of punishment. Section 143(a) of the Code of Criminal Procedure, 1973 provides for commutation of a sentence of death by appropriate Govt.
Moreover, every death sentence passed by a sessions (trial) court must be confirmed by high court as required by chapter XXVIII of the Code of Criminal Procedure, 1973. Even after this confirmation, one can prefer an appeal for commutation to the Supreme Court. In case, the SC also rejects this appeal or upholds the sentence, the accused still has an option to file a ‘mercy-petition’ before the President of India. Article 72(1) of the constitution of India confers on the President the power to grant pardons, etc. and to suspend, remit or commute sentences in certain cases.
Scope for commutation of punishment does not end at rejection of mercy petition by the President. The accused still has an opportunity to file a writ petition under Article 32 of the Constitution for commutation on the ground of delay in deciding mercy petition or on several other grounds laid down in various case laws. Besides these, Article- 21 of the constitution says that no person can be deprived of his life and liberty except according to procedure established by law.
Recently the SC in the case of Ajay kumar Pal Vs UOI has commuted the death-sentence to life-imprisonment. This commutation was granted on the ground of ‘inordinate delay’. A bench of Dipak Misra, Rohinton Fali Nariman, Uday Umesh Lalit JJ. Said that “Though no time limit can be fixed within which the mercy petition ought to be disposed of, in our considered view the period of three years and ten months to deal with such mercy petitions in the present case comes within the expression ‘inordinate delay’.”
Similarly in the case of Shatrughan Chauhan v. Union of India the SC commuted death sentence of fifteen death row convicts due to delay in mercy plea decisions. The Apex court also ruled that a death row convict suffering from mental insanity and schizophrenia cannot be hanged.
In this way the SC overruled its own verdict in Devinderpal Singh Bhullar’s Case in which it has held that the delay in deciding mercy plea cannot be a ground for commutation of death sentence.
The Shatrugan judgment is considered a progressive step as the court observed: “Remember, retribution has no constitutional value in our largest democratic country”.
In the view of above mentioned judgments it can be said that judiciary is moving towards discarding retributive theory of punishment and adopting reformative theory of punishment. It is contended that commutation of sentences is an attempt to give human touch to criminal law and is based upon Reformative theory of punishment. Earlier, the SC in the case of Narotam Singh Vs State of Punjab had observed that, “The reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending communal conscience and to secure social justice.”
Therefore, legislative and judicial inclination towards reformative approach is apparent from above discussion. It is indeed an important approach and has been appreciated by human right activists. However I think that this approach is not useful in present day scenario when increased crime rate has reached at alarming level. At this juncture, commutation of death sentences following the reformative theory is giving a message that a wrong doer is safe in the hands of so called welfare state. According to Jeremy Bentham punishment is evil in the form of remedy which operates by fear. I also agree that element of fear is required for preventing a person from doing wrong. I criticize the provisions relating to commutation of death sentences on following grounds:-
- Provisions relating to commutation are adding towards removing fear from the mind of a wrong doer. Since punishment is the redress taken against the offender, non-punishment of offender is injustice to law-abiding people. Therefore deterrence theory propounded by Jeremy Bentham is required at this stage.
- I agree with the view of the court taken in the case of State of Punjab Vs Rakesh Kumar that, “Undue sympathy to impose inadequate punishment would do more harm to the justice system that undermines the public confidence in the efficacy of the law”.
Since the inflicted punishment is proportionate to the crime, commutation is unjust.
- Our criminal justice already grants exemptions to persons of unsound mind and act caused by grave and sudden provocation. There is no logic behind granting exemption for voluntary acts.
- Commutation of death sentences is like avoiding people’s hunger for justice and there is possibility of erupting public outrage.
It is significant to note here that there are many instances when public revolted for giving harsher punishment to accused as happened in Nirbhya case and Jessica Lal Murder case. These incidents show that if people’s hunger for justice is not honoured, the society will not honour the criminal law.
According to Hart, “Sanctions are therefore required not as the normal motive for obedience, but as guarantee that those who would voluntarily obey shall not be scarified to those who would not. To obey without this, would be to risk going to wall.”
Reduction or prevention of crime is the ultimate object of punishment. Punishment causes fear and fear is an essential ingredient for avoiding crime. Therefore, death sentences should not be commuted, because commutation removes the element of fear.
