Report No. 35
Topic Number 55
1012. Dual power of commutation.-
In connection with the power to commute death sentences, reference must be made to one important point which requires discussion. Under Article 72(1) of the Constitution, the President has a power to grant pardons, etc., to commute sentences, etc., (so far as is relevant) not only in 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,-
Paragraph (b)-but also in all cases where the sentence is a sentence of death-
Paragraph (c)-but the later power is not to affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under "any law" for the time being in force.
Under Article 161, the Governor of a State shall have a power to grant pardon, etc., or to pardon, 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. The extent of the executive power of the Union is dealt with in Article 73(1). The extent of the executive power of the State is regulated by Article 163, under which it extends to all matters with respect to which the Legislature of the State has power to make laws-which would include criminal law.
The proviso to Article 163, however, states that in any matter with respect to which the Legislature of a State or Parliament has power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
1013. It would be obvious that, so far as the commutation of the sentence of death is concerned, it falls both within the power of the President and within the power of the Governor under the Constitution1; and none of the provisions of the Constitution cited above2 seem to have the effect of taking away the power of the Governor.
1. Cf. Channugadu (in re:), AIR 1957 AP 249 (251), para. 4 (Subba Rao J.).
2. Para. 1012, supra.
1014. We may next refer to the provisions1 of the Code of Criminal Procedure, 1898. Under section 401(1) of that Code, the "appropriate Government" may conditionally or unconditionally suspend the execution of sentence or remit the whole or any part of the sentence. Under section 402(1), the "appropriate Government" may commute the sentence of death to imprisonment for life or other lesser sentence.
The definition of "appropriate Government" is contained in section 402(3), but it is unnecessary to consider it, because, under section 402A, the powers conferred by these sections upon the State Government may, in the case of the sentence of death, also be exercised by the Central Government. The vesting of the power in two Governments, found in the Constitution, is thus reflected in the Code of Criminal Procedure also.
1. Sections 401, 402A, Code of Criminal Procedure, 1898.
1015. Lastly, powers of commutation, etc., are conferred by section 54 read with section 55A of the Indian Penal Code, in respect of the sentence of death, and the same dual power exists under these provisions1-2. These sections are saved by section 402(2) of the Code of Criminal Procedure, 1898, which was inserted by the Amendment Act of 1923 in view of the fact that3 doubts had been expressed whether section 402, Criminal Procedure Code was not in conflict with section 54, Indian Penal Code.
1. Section 54, Indian Penal Code authorises CommutatiOn without consent and to any other punishment.
2. When the Indian Penal Code was enacted, provisions as to pardon, etc., were also contained in the Pardons and Reprieves Act (18 of 1855), repealed by the Repealing Act, 1874. In the Code of Criminal Procedure, 1861, section 54 was narrower than present sections 401 and 402.
3. See Gazette of India (Pt. V), March 28, 1914, p. 125 (Bill No.3 of 1914, Clause 93).
1016. This dual power1 existed in section 295 of the Government of India Act, 1935 also2.
1. Paras. 1012-1015, supra.
2. Cf the discussion of history of the power in K.M. Nanavati v. State of Bombay, (1961) 1 SCR 497: AIR 1961 SC 112 (127) (dissenting judgment of Kapur J.). That the power of the Governor to grant pardon, etc., under Article 161 "to some extent overlaps the same power of the President, particularly in the case of sentence of death"; was noted in the majority judgment also; see p. 119, para. 13 in the AIR.
1017. Theoretically speaking, the vesting of this power in two authorities may be objectionable, because it may result in the following situations:-
(i) The petition may have been granted by one but an independent petition may have been rejected by the other.
(ii) The petition may have been rejected by one, but granted by the other.
(iii) The petition may have been accepted by one and the sentence commuted for imprisonment for life, while it may have been accepted by the other and the sentence commuted to some other lesser sentence.
(iv) Where there is a petition by several persons, petitions of a few persons may have been accepted by one and the petitions of other persons rejected, while the petitions of the others may have been accepted by another authority.
These situations can cause practical embarrassment, and, further, where the commutation is granted differently under (iii) above, by the President and the Governor, legal complications can also arise.
1018. The suggestion of the Chief Minister of a State with reference to the dual power may be quoted1:-
"Governor should be left with this power when the crimes had been committed in his territory. If committed in the territory under the Central Government, President should be vested with this power. But in cases where the Governors reprieve or suspend or commute or remit the sentence, they should get the approval of the President."
1. S. No. 255, under question 11(a).
1019. It may not be necessary to go to the length of suggesting any modifications in the Articles of the Constitution or the sections in the Criminal Procedure Code.
The matter is one which can be left to administrative instructions.