Here Charitable Individualism is the key!… nothing less.


 

 This is the Constitutional provision relating to commutation of sentence by the State Government through the Governor of thye state:

ARTICLE 161

The Governor 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.

The following Article provides for the powers of the President relating to commutation of the Central Government through the President of India:-

ARTICLE 72.

 (1) The President 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—

 

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) 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;

          (c) in all cases where the sentence is a sentence ofdeath.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall 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.

So there are these 2 Articles in the Constitution of India which clearly show that the President or the Governor of the State could grant reprieves, commute or remit sentences PROVIDED they are ADVISED so by the CENTRAL or STATE Governments in exercise of their (State & Union) respective EXECUTIVE POWERS. But if the sentence were to be capital, then the President of India has the OVER-RIDING powers to go beyond the EXECUTIVE POWERS of the CENTRAL GOVERNMENT and commute capital  sentence-( see Art 72 (1) (c)).

The issue, i have taken up for focus is that the Tamil Nadu State Government has passed a resolution in the TN Assembly to commute the Death Sentence of the Late Rajiv Gandhi killers. Is the Governor of Tamil Nadu competent to commute the sentence.

NO.

The reason is that, the killers were charged under Indian Penal Code 1860. IPC is common for both the State and Central Governments as per Schedule VII to the Constitution of India, as CRIMINAL LAWS are included in the CONCURRENT LIST.

But the exercise of the powers under the IPC, in the case of Rajiv killers were exercised by the Special Investigation Team ( which i presume was constituted by the Central Government using its EXECUTIVE POWERS- may be at the request of the then Government of Tamil Nadu). So in effect, the trial and further proceedings were carried forward by the Prosecution of the Central Government. Therefore the POWER TO COMMUTE THE DEATH SENTENCE, AWARDED BY THE COURTS, IN PURSUANCE OF THE EXECUTIVE POWERS OF THE UNION, SOLELY RESTS WITH THE PRESIDENT OF INDIA. Further, a DEATH SENTENCE passed by the courts in pursuance of the Executive powers of the Union Government cannot be commuted by a Governor of the State. This OMNIPOTENCY for commuting a death sentence has been granted only to the President of India.

I see no reason why a State Assembly should take upon itself to pass a resolution. Is the State Assembly trying to force the hand of the Union Government to COMMUTE? After all the State Government could recommend to the Governor even without taking the matter to the Assembly. Is it politics…………even in matters of Life and Death?

Another dimension of the issue is that there has been a lot of talk about HOW A GOVERNOR CAN NOT COMMUTE A DEATH SENTENCE,  AFTER THE PRESIDENT HIMSELF HAD REJECTED THE CONDEMNED PRISONERS’ PLEA? The provisions of Article 72 (2) clearly states that the powers conferred by law on an officer to commute, shall not stand affected by the powers vested on the President. Therefore, if the Rajiv Gandhi killers had been prosecuted by the State officers under the IPC, then the powers of Governor would be similar to that of the President, with regard to Capital Punishment only. Even if the President had rejected the Mercy Plea, the Governor could still commute the sentence based on the advice of the State Government.

LET US DECIDE THE PRINCIPLES BASED ON WHICH WE ARE GOING TO DECIDE.

 LET US UPHOLD THE CONSTITUTION OF INDIA AND SANELY INTERPRET IT. AFTER ALL, OUR CONSTITUTION IS OUR ONLY HOPE.

 

 

 

 

 

 

 

Advertisements

Comments on: "Commutation of Death Sentence in India." (3)

  1. Quite interesting.I feel there is no prohibition for the Governor of a state to grant pardon or clemency Just because the investigation has been conducted by a central agency . In this case the president has already rejected their mercy petitionsNad I feel it will not be proper for the governot to consider the same.

    • These 2 issues have been dealt already in my blog.
      The Governor could grant pardon, reprieve or commute if “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”. By virtue of the fact that the offence was prosecuted using the powers and personnel of the UNION, the Governor loses his COMPETENCE.
      Secondly, there is no hierarchy which prevents the Governor from exercising his powers of COMMUTATION subsequent to the PRESIDENT rejecting the MERCY PETITION, as clause 2 of Article 72 clearly states that an officer empowered by the law could exercise the same powers of pardon, reprieves and commutation granted to the President. It no where says that subsequent to the President rejecting a mercy petition of the one sentenced by court martial, the officer thus empowered SHOULD NOT exercise such powers. Further, if an officer’s powers are co-equivalent to that of the president in that aspect, then the Governor’s powers being co-equivalent to that of the president does not seem improper. Moreover, the state’s powers are distinct so far as list 2 of schedule 7 are concerned, so the president is not higher in the hierarchy- unless the Governor places the government’s resolution for consideration by the President.
      Further, if the High Courts could review a death sentence on procedural grounds subsequent to the rejection of the Mercy Petition, the Governor surely would be well within the Constitutional Law if he exercises his MERCY Jurisdiction- provided the Governor is competent. But in this case, the Governor is NOT COMPETENT, as the issue is not within the state’s jurisdiction.
      Thanx for yr comments.

  2. M Dhoondia said:

    Commuting death sentence – this is the most ridiculous thing to happen … we are only encouraging more crimes … where is the deterrence gone??

    It is a joke … ok understandably the Govt is full of jokers n morons leaving aside the lawless and corrupt – then was the SC sleeping all these years – if it has awarded a death sentence and that is lying in abeyance pending a decision on mercy petition – then what has it been doing ??? now if it has the time and energy to go to length to say there was an inordinate delay ??

    To add to that – even ex-Attorney General like Mr Soli Sorabjee has the audacity to say that – I wish when he was the AG he had done enough to push the cases the decisions could have been taken in time [either which way] and not lead to a situation where the sentence is commuted without due diligence.

    The people who humour me the most are guys like Collin Gonsalves, the so called champions of the people who commit heinous crimes – I wish they become the victims – and then if they have the audacity to say let go then I will maybe consider what they are saying.

    We Indians are champions of humanity when we are not the affected party – else we want the alleged person to be hanged even for raising his voice.

    To sum it – In our country the most harassed man is an honest sincere hardworking man …. the worst become politicians

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Tag Cloud

%d bloggers like this: