Focus: GS-II Governance
Why in news?
The Supreme Court has commuted the death sentence of a man who murdered three children aged between eight and four, concluding that he was suffering from “extreme mental disturbance” at the time of the “abominable crime”.
Views of the Supreme Court in this Case
- It is true that a larger number of criminals go unpunished, thereby increasing criminals in society and law losing its deterrent effect.
- It is true that the court must respond to the cry of society and settle what would be the deterrent punishment for an abominable crime.
- Sometimes it is stated that only rights of criminals are kept in mind and the victims are forgotten.
- However, death penalty was a rarest of rare punishment. Hence, while awarding death, the courts must strike a balance between the mitigating and aggravating factors, which depend on the facts and circumstances of each particular case.
Tools to suspend, remit or commute death sentence
Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications.
Commutation: It denotes the substitution of one form of punishment with a lighter form of punishment. For example, a death sentence may be commuted to rigorous imprisonment.
Remission: It implies reducing the period of the sentence without changing its character. For example, a sentence of rigorous imprisonment for five years may be remitted to rigorous imprisonment for one year.
Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
Pardoning Powers under the Constitution of India
In India, the power to grant pardon is conferred upon the President of India and the Governors of States under Articles 72 and 161 of the Constitution 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 of death.
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
Pardoning power under Judicial Review: Curative Petition
- The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
- The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.
- For this purpose, the court has devised what has been termed as a “curative” petition. In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
- This has to be certified by a senior advocate.
- The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available.
- No time limit is given for filing Curative petition.
- It is guaranteed under Article 137 of Constitution of India i.e. powers of the Supreme Court to review of its own judgements and orders.
Purpose of Granting Pardon
- Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction.
- The object of conferring this
power on the President is two-fold:
- To keep the door open for correcting any judicial errors in the operation of law;
- To afford relief from a sentence, which the President regards as unduly harsh.
