Consult victims' families before granting remission

Eighteen years ago, they set fire to a college bus full of students in Dharmapuri, to vent their anger over an adverse court order against their party chief. Three young lives were snuffed out. After confirming their death sentence, the Supreme Court, on a review petition, had commuted it to life imprisonment. Earlier this week, the three convicts walked free. The State Government invoked Article 161 of the Constitution to remit the sentence. This provision empowers the executive through the Governor to grant pardon, suspend, remit or commute any sentence. The Constitutional route aside, there are also statutory provisions for remission under Sections 432 and 433 of the Code of Criminal Procedure (CrPC).

Did this remission, on the occasion of the birth centenary of a former Chief Minister, shock the collective conscience of society, all over again? How tenable was the reason cited that the convicts had no premeditation or planning and that it was mob frenzy? What about the act itself that was so ‘imminently dangerous’ covered squarely by the fourth explanation to Section 300 of the Indian Penal Code (IPC)? The decision of the Council of Ministers is however binding on the Governor, which is why he signed the file when it was sent back to him a second time.

Almost four decades ago, the Supreme Court in Maru Ram Vs Union of India, had struck a cautionary note on what it referred to as “bizarre freaks of remissions”. It held that “the exercise of this plenary power cannot be left to the fancy frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must”, adding that “liberal or promiscuous use of the power of remission under Section 433(a) may mean that many a murderer or other offender who could have been given death sentence by the court but has been actually awarded only life sentence may legally bolt away the very next morning, the very next year, after a decade or at any other time the appropriate Government is in a mood to remit his sentence.”

There has been a misconception that life imprisonment means a 14-year jail term. This stems from incongruous sections in the IPC and CrPC. Under Section 433 A CrPC, convicts sentenced to life imprisonment or whose death penalty is commuted to life imprisonment, should have clocked at least 14 years of imprisonment, to be eligible for remission. While Section 45 IPC defines ‘life’ as “the life of a human being”, Section 57 IPC states that in “calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.” The Apex Court in Gopal Vinayak Godse Vs State of Maharashtra, held that a “sentence for ‘imprisonment for life’ ordinarily means imprisonment for the whole of the remaining period of the convicted person’s natural life.” This opinion was  restated in a slew of decisions like Rameshbhai Chandubhai Rathode Vs State of Gujarat and State of U.P. Vs Sanjay Kumar, where the Supreme Court affirmed that life imprisonment cannot be equivalent to impri
sonment for 14 or 20 years, and that it actually means (and has always meant) imprisonment for the whole natural life of the convict.

The Committee of Reforms on the Criminal Justice System under the Chairmanship of Justice Malimath, in its report submitted in 2003, recommended suitable amendments to the IPC, with an alternative to the death penalty. It mooted tweaking of Section 53 IPC for a punishment higher than life imprisonment and lesser than death penalty, similar to that which exists in USA namely “Imprisonment for life without commutation or remission.” Courts are empowered to award such sentences. A Constitution Bench of the Supreme Court in Union of India Vs V.Sriharan observed that “the right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court.”

Most cases of remission have political underpinnings, rather than a sound criminological basis. The Supreme Court in Swamy Shraddananda Vs State of Karnataka made it clear that the Court “can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases.”

The cries of a father of one of the Dharmapuri fire victims after the remission were heart-rending. Why can’t the views of the families of victims be taken into consideration instead of mere political reasons and routine occasions like birth anniversaries? Their opinion need not be binding. When political parties in power in the country grant remission to their workers, what message is sent out? A bail-out in return for loyalty and sycophancy? Doesn’t it lead to discrimination with two classes of citizens - members of parties and others, with preferential treatment to the former? As Justice V.R. Krishna Iyer pointed out in the Maru Ram case, high constitutional powers run the risk of being “devalued in practice by those 'dressed in a little brief authority' thereby encouraging the fallacious impression that functionaries of our Republic are re-incarnated quasi-maharajas of medieval vintage!”

Free to go
Presidential Pardon & Remission - Article 72 of the Constitution

Governor's Pardon & Remission - Article 161 of the Constitution

Statutory Power to Suspend or Remit Sentences - Sections 432 & 433 CrPC

Restriction on Remission or Commutation - Minimum 14 years imprisonment served - Section 433 A CrPC.

State Government to Consult Central Government in cases investigated by central agencies - Section 435 CrPC.

(The writer is an advocate at the Madras high court, columnist & author)