The Concept of ‘Kshama’ in Indian Criminal Justice

October 31, 2018

“What is tolerance? It is the consequence of humanity. We are all formed of frailty and error; let us pardon reciprocally each other’s folly – that is the first law of nature” – Voltaire

When 18^th Century French enlightenment thinker – Voltaire talks about ‘tolerance’, he speaks of it under the purview of the archaic practices of mercy, pardon, or clemency, often associated with a god-like monarch having absolute power over his subjects, including their lives. This power may be traced back to the provisions limiting vengeance in the Code of Hammurabi, or to the power vested in the Roman Emperor at gladiator fights.^[1] The term itself has been construed as a prerogative of the crown – an act of grace that exempts an individual from the punishment inflicted upon him from the due process of law.^[2] Over the course of history, such rights have evolved accordingly and paved their way into the modern constitutions and legal frameworks of the 21^st century.

In the Indian scenario, the Constitutional provisions pertaining to the ‘law of pardon’ are borrowed from the British and appear in the Government of India Act, 1935. These were retained by the Constituent Assembly and were subsequently integrated into the Constitution of India, 1950 . Article 72 of the Constitution pertaining to ‘Presidential Pardon’ bestows upon the President the powers to pardon coupled with the power to suspend, remit, and commute sentences under the executive power of the jurisdiction, with certain stipulated limitations. Article 161 confers an analogous power to the governor of each state. Notwithstanding the Constitutional provisions, Sections 432 through 435 of the Code of Criminal Procedure, 1973, independently deal with the intricacies of these powers and elucidate the procedural aspects.^[3]

For the purposes of this paper, the author shall be limiting himself to the ‘remission of sentences’ while critically analysing the plea appeal of the convicted in the Rajiv Gandhi assassination case. However, before proceeding further, it is imperative to note that despite sharing a common purpose and being closely intertwined, a fine line exists between ‘remission’ and ‘suspension’ and ‘commutation’ of sentences. ‘Suspension’ is the temporary taking away or postponement of the execution of a sentence pending further executory orders or investigative reports, whereas ‘commutation’ connotes replacing a particular form of punishment for a lighter one. ‘Remission’, on the other hand, refers specifically to reducing the sentence period without changing the nature or character of the offense and leaving the order untouched.  For instance, after serving five years of her stipulated eight years, a convict may have her sentence remitted, meaning she is exempt from serving the remaining three years of her sentence.

Section 432 of the Code of Criminal Procedure gives the “appropriate government” the power to suspend or remit wholly or in part a sentence propounded to an offender at any time with or without stipulated conditions. Over the course of time, commonly invoked reasons for remission include ‘good behaviour’, and ‘health-related’ issues. Many have even been ‘politically motivated’ and ‘political strategizing’, such as the release of K.M. Nanavati – an army man who had killed his wife’s lover along with another convict hailing from the same community as the Nanvati’s victim.Sub-clause (3) of Section 432 empowers the Court to set certain conditions, failure to comply which, might, at the Government’s discretion,^[4]  terminate the remitted or suspended sentence in such manner that the convict would have to undergo the incomplete portion of the original sentence.^[5][6] Sub-clause (7) while defining “appropriate government” elucidates the jurisdictional limits of the Centre and the states. Section 433A places time-bound restrictions on this power in cases wherein death sentences have been commuted to life and shall be addressed later while discussing the Rajiv Gandhi case. Sections 434 and 435 pertain to specific stipulations regarding Centre-state jurisdictional powers.

It is imperative to understand that the exercise of this power is a ‘post-judicial’ process and is largely beyond the scope of the judiciary,^[7] whose role is primarily to direct the ‘appropriate government’ to consider a case for remission or suspension. Nonetheless, true to the famous saying – ‘absolute power corrupts absolutely’, reports of the executive misusing such power came to light, and the judiciary, in their unremitting power struggle with the executive, imposed certain restrictions upon this power.^[8][9][10]

The Supreme Court, in the landmark judgment in Laxman Naskar,^[11] established certain guidelines only upon the fulfilment of which, sentences may be remitted. established specific guidelines only upon the fulfilment of which sentences may be remitted. These included scrutinization of factors including the nature of offence, the probability and potential of a recurrence of such offence in the future, the socio-economic conditions of the convict’s family and if there lies any constructive purpose of continued conviction. Likewise, the judgement in Maru Ram^[12] placed the executive’s pardoning power under judicial review. On a separate note, the Courts have also taken into consideration the torment and agony caused both to the convicts and victims’ families while waiting for a decision to their mercy petitions, and thus, the necessity for a time frame for such a decision was highlighted. However, it has been observed that due to the sheer nature and extenuating circumstances of each case and the multitude of cases before the sentencing committee, is impossible to set a fixed period for disposal of mercy petitions.^[13] For instance, recently the Delhi Sentencing Review Board rejected eighty-six ‘mercy pleas’ including the high-profile infamous convicts in the Jessica Lal and Priyadarshini Mattoo murder cases as well as the accused in the Tandoor case;^[14] however, the unfortunate downside to this is that there are cases wherein the convicts have been waiting for over a decade for their mercy petitions.^[15]

The assassination of the former Prime Minister of India – Rajiv Gandhi, and the mercy petition of his murderers, is one such example. He was assassinated in 1991 during an election rally in Sriperumbudur, Tamil Nadu as an explosion was orchestrated by Sri Lankan militant faction – LTTE and claimed the lives of sixteen others.^[16] The seven convicts namely – V Sriharan, T Suthendraraja, A.G. Perarivalan, Jayakumar, Robert Payas, P. Ravichandaran and Nalini – who have been punished with life imprisonment have already served twenty-seven years and thus, upon the AIADMK-led governments’ and the Supreme Courts’ recommendation, Governor Purohit of Tamil Nadu has been asked to consider remitting their sentences under Article 161. The Central Government, however, seems opposed to this view claiming that any remission of sentence would set a “dangerous precedent” and have “international ramifications”.^[17] Ergo, the second half of my paper, shall be directed towards scrutinising and analysing both viewpoints: that in favour of the remission of sentences and that against it.

Those in favour of remitting the sentences of the convicts have argued that India’s prison system must ultimately stay true to the theory of reformative justice and that over the course of our country’s history, hundreds of convicts have been pardoned and have had their sentences remitted under the ambit of Article 161. They assert that the equality clause of the Constitution must not be shied away from the convicts in this case, who have already been kept waiting for over a decade for a decision. Thus, post the commutation of their sentences by the Supreme Court in 2015^[18] after their initial conviction provides a glimmer of hope for further remission under sections 432 and 435 of the Criminal Procedural Code. Advocates of reformative justice of these convicts have argued in consonance with the Seventh Schedule wherein under Entry 1 of List II, the ‘public order’ clause lies under the ambit of the State and have additionally invoked Rule 341 of the Tamil Nadu Prison Rules stating that the “advisory Board of the prison shall deem life imprisonment to be “imprisonment for twenty years” for consideration for premature release or parole.” They assert that a separate treatment with these convicts considering the magnitude of the situation and other politically motivated reasons would be highly egregious and arbitrary in nature.

Those opposing the grant of pardon and thus a remission to their sentences argue that pardon in itself is not a right but a discretionary prerogative of the President and Governors and thus it may not be ‘demanded’ or ‘claimed’. It may be sought and granted only in extreme cases of serious health issues or family dependence. Furthermore, they argue that those in question are ‘political convicts’ whose release the Courts have cautioned against their release and that the very fact that their sentence was commuted from death penalty to life in itself is a sufficient act of clemency. The Centre who staunchly oppose such remission contend that if granted, it would set a very negative precedent and shall have international ramifications considering the fact that a portion of the convicts are in fact Sri Lankan nations. They also cite anti-terror and security measures as key to the decline of such plea and that pardon may only be exercised in cases of national importance.

However, this is not a simple open and shut and case, having only two-dimensions. The scenario considering its’ nature and the power-struggle between the centre and state need to be addressed. At the outset, it has to be laid down clearly that many who argue for the release of the convicts, have argued that more than fourteen years have been completed and thus life imprisonment is served. However, this is riddled with fallacy as the Supreme Court in Gopal Vinayak Godse v. the State of Maharashtra^[19] have held that punishment of life imprisonment extends to the rest of one’s natural life. It is only that due to certain extenuating factors such as overcrowding that they are released. Secondly, the offence committed although due to political vendetta was aimed at one person – Rajiv Gandhi. However, the attacks claimed not only his, but also sixteen other lives and injured many others and this was thus an attack against a former Prime Minister but also, the country at large and thus is different in nature than other murders. The mere fact that the former Prime Minister’s family does not have any objection to the release and thus a plea for remission is a foolish argument as this attack involves the families and loved ones of so many more. Another issue raised was that most of the convicts were in their twenties and over the course of over twenty years have changed both emotionally and mentally and thus the fairness of continuing to imprison them for the same was challenged and if looked at under the purview of reformative justice is a fair point.

There is, therefore, no straight answer. One can only wait and with bated breath and see as in this case both complicated questions of law and policy are involved, which may have to be resolved before a final call is taken by Governor Purohit.

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^[1] J. P. Rai, ‘Exercise of Pardoning Power in India: Emerging Challenges’, The NEHU Journal, Vol XII, No. 2, 2014.

^[2] Burdwick v. United States, 236 US 79 (1915).

^[3] C.S. Ramachandra Nair v. Balachandra Goplan Pillai 2011 CrLJ 3449 (3451) (Ker).

^[4] Sk. Abdul Azeez v. State of Karnataka (1997) 2 SCC 485.

^[5] N. Sukumaran Nair v. Food Inspector (1997) 9 SCC 101.

^[6] Sohan Singh v. State AIR 1965 Punj. 156.

^[7] Satish Kumar Gupta v. State of Bihar 1991 Cri LJ 726 (Pat).

^[8] Kamalanantha v. State of Tamil Nadu 2005 5 SC 194.

^[9] Thirumalareddy Thamasamma v. Govt. of Andhra Pradesh 1992 CriLJ 3016 (A.P.).

^[10] Keher Singh v. Union of India, AIR 1989 SC 653.

^[11] Laxman Naskar v. Union of India AIR 2000 SC 986.

^[12] Maru Ram v. Union of India AIR 1980 SC 2147.

^[13] Madhu Mehta v. Union of India 1989 Cri.L.J. 2321.

^[14] ‘Delhi Sentence Board rejects release request of Jessica Lall killer Manu Sharma, 86 others’ <https://www.dnaindia.com/india/report-delhi-sentence-board-rejects-release-request-of-jessica-lall-killer-manu-sharma-86-others-2671620&gt;, 1^st October 2018, accessed 9^th October 2018.

^[15] V. Sriharan v. Union of India (2014) 4 SCC 242.

^[16] ‘1991: Bomb kills India’s former leader Rajiv Gandhi’, <http://news.bbc.co.uk/onthisday/hi/dates/

stories/may/21/newsid_2504000/2504739.stmBBC News>, 21^st May 1991, accessed 11^th October 2018.

^[17] ‘Centre opposes release of Rajiv Gandhi killers: will set dangerous precedent’, <https://indianexpress.com/ article/india/centre-opposes-release-of-rajiv-gandhi-killers-will-set-dangerous-precedent-5301241/> 11^th August 2018, accessed 11^th October 2018.

^[18] V. Sriharan v. Union of India (2014) 4 SCC 242.

^[19]Gopal Vinayak Godse v. the State of Maharashtra (1961) 3 SCR 440.