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.
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