(This article is written by Niharika Singh, a fourth-year BBA-LLB Student from Gitarattan International Business School, Rohini, Delhi.)
When an accused is held guilty, he has to serve the punishment drawn to him. There had been immense debate on the constitutionality of the death penalty and it was held in the landmark judgement of Bacchan Singh v. the State of Punjab that it should be given in rarest of rare cases, what is the rarest of the rare case is still not categorised because the Mens rea cannot be calculated.
To deal with this type of issue and to do justice in a reformative way concepts of commutation, suspension and remission have been added to give another chance to the accused. This power is with the government and the provision which deal with these are Sections 432 and 433 of the Criminal procedure code, 1973 and Article 72 and 161 of the Constitution of India,1950.
A new provision added as Sec 433A which keeps mandatory to serve life imprisonment of 14 years for those whose death penalty has been commuted to life imprisonment. Petition filed challenging the constitutional validity of Sec 433A and what the apex court held came out to be a landmark judgment. Followings are the analysis of two landmark judgement dealing with this issue, by reading of which will give us a clear understanding of the constitutional validity of Sec 433A.
Maru Ram v. Union of India
1980 AIR 2147
Facts of the case:
When Section 433A was added to the Criminal Procedure Code, 1973, several petitions were filed challenging the constitutional validity of it on the ground that it violates the provision of Article 14, 20(1), 72 and 161 of the Constitution of India, 1950. The case of the petitioner is that Parliament has broken the law by enacting sec 433A. Another issue that was also raised is that whether the various provisions for remission under the Prison Act and Rules and other legislation had their full operation notwithstanding sec 433A.
Observation of the court:
Sec 433A will have applicability in the case of Prison and prisoners over state law and if there will be any repugnancy central law will override as per Article 246 of the Indian Constitution. By the addition of this section, the court holds a minimum of 14 years of mandatory life imprisonment to be served. Sentencing is a judicial function and executing it is an executive function and no executive can alter the sentence.
Sec 433A categorize specific class of life imprisonment cases and adhere them to a particular treatment. CrPC,1973 will be considered as general code and thus by the virtue of Sec 5 of CrPC,1973; Sec 433A will have an overriding effect because Sec 5 expressly says that if a specific law is contrary to any special law or local law will have a prevailing effect.
It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. So, even without reference to Article 367(1) and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers.
Sec 433A is a constitutionally valid provision, it is a social piece of legislation in order to give another chance to the accused to rectify his mistake and also at the same time protecting and providing justice to the victim and to his family. It is given in only those cases where the penalty for the offence is either the death penalty or life imprisonment for life and the offence is commuted to life imprisonment. The reformative form of punishment is a need of an hour, but it can only be effective if people are educated and realise the magnitude of committing an offence.
When someone takes the life of another his right to life is on one side and the victim who lost his life is another thing. So, a person who is punished after a prescribed procedure which is established by law cannot raise his liberty option because the right to liberty is not a one-handed option. The various provisions for remissions under the Prison Rules and other legislation had their full operation notwithstanding Sec 433A, thanks to the savings provision in Sec 5 of the Procedure Code.
Expecting the rules laid down under the Prisons Act is valid and cannot be abrogated by State law, the doctrine of harmonious construction should be applied when dealing with Sec 433A and the Prison rules law. According to Godse’s and Rabha’s case, remission rules can also harmoniously co-exist with Sec 433A.
Judgment of court:
By dismissing the petition, the court held the following propositions:
- Section 433A is constitutionally valid.
- Remission or short-sentence passed under 72 and 161 is also valid.
- Sec 433A doesn’t nullify the operation of the constitutional power to remit, commute and the like mentioned in Articles 72 and 161.
- Sec 433A doesn’t violate Article 20(1).
- The prisoner can claim remission only after it is approved by the government.
- Sec 433A will not operate against a case decided by the trial court before Dec 18, 1978, i.e. it will have a prospective effect.
- Power under articles 72 and 161 can be exercised by the approval of the government only.
- Sec 433A is itself treated as a guideline for the exercise of Articles 72 and 161.
Critical analysis:
As per my opinion, Sec 433A is constitutionally valid. Punishment is of various types and the most opted is reformative but there are cases that show that humans have lost their humanity to a level no one can fall. But still when someone genuinely wants a chance to improve, in that situation this provision does justice to a level to both the parties. It doesn’t violate any provision, is itself a special dealing with special cases.
Swami Shradhananda v. the State of Karnataka
(2008) 13 SCC 767
Facts of the case:
Shakereh, the deceased victim of the crime, was a granddaughter of a former Dewan and come from a highly reputed and wealthy family. She was married to Mr Akbar Khaleeli, a member of the Indian Foreign Service. Shakereh came to know the appellant, Murali Manohar Mishra who called himself Swamy Shraddananda, for the first time in 1983 when she and her family were visiting the erstwhile Nawab of Rampur in New Delhi. The appellant was introduced as someone who was looking after the Rampur properties. Shakereh, wanted to buy that property but at that time was facing some difficulties under the urban land ceiling law and she asked the appellant to come over to Bangalore and help her in sorting out the problems concerning her properties. Her desire to beget son made her give divorce to her husband and then marry the appellant.
By the end of May 1991, Shakereh suddenly and mysteriously disappeared. One of her daughters, Sabah stopped getting calls from her mother and when she introspected, every time appellant makes some excuses about her existence. When she was not able to find her mother, she lodged a written complaint at Ashok Nagar Police Station where it was registered on 10 June 1992 simply as a woman missing complaint bearing Cr.No.417/1992.
Under intense interrogation, it came to know that the appellate gave a sleeping dose to the victim and put the body of Shakereh inside a large wooden box and got the box dropped into a pit in the grounds just outside their common bedroom. He then got the pit filled up by the earth and the ground surface cemented and covered up with stone slabs.
The trial court and the High court both announced for the death penalty. So, an appeal against it was filed before the apex court.
Observation of the court:
The case of Swami Shradhananda emerged during the period when the punishment for imprisonment for life has become the rule and award of death sentence is limited to ‘rarest of rare cases only. Earlier instances have suggested that where the death sentence is substituted with imprisonment for life, the convict is released after serving 14 or 20 years thereby leaving the courts handicapped. In this context, the Bench has begun to explore for a far more just, reasonable and proper sentence as an alternative to death sentence which may prove adequate and proportionate for doing complete justice.
The court found that a ‘standardization or sentencing discretion is a policy matter which belongs to the sphere of legislation’ and `the Court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do.’
Now, remains the question of whether this Court can lay down standards or norms restricting the area of the imposition of the death penalty to a narrow category of murders. In the lengthy discussion on the issue, the Court gave over half a dozen different reasons against the argument urging for standardisation and categorisation of cases; it also cited the American experience to show the futility of any such undertaking. A perusal of that part of the judgment shows that a very strong plea was made before the Court for standardisation and categorisation of cases for the purpose of the death sentence.
Judgement of court:
In this case, the court substituted the death penalty into life imprisonment and held that the convict mustn’t be released from prison for the rest of his life or for the actual term as specified. The apex court also did categorisation for an inhuman act which can expect death penalty for instance,
- Manner of commission of murder: When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
- The motive for commission of murder: When the murder is committed for a motive that evinces total depravity and meanness.
- Anti-social or socially abhorrent nature of the crime, for e.g., When the murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath
- The magnitude of crime: When the crime is enormous in proportion. For instance, when multiple murders say of all or almost all the members of a family.
Critical analysis:
The apex court was right in substituting the punishment as we cannot give the death penalty in every next case. Commonly murders are mostly done for the sake of alimony, properties and the like, so not in every case, the court can give the death penalty. Even in our legislation, we have been given the option of giving punishment. If we go by the facts and the judgement, we can find that there was mens rea to obtain property rather than individually killing Shakerah, and that also giving her painless death, so some act of the convict makes him a little different than the brutal criminals. The judgement of this case is favourable to the accused who know that they very well going to get the death penalty but want a chance to improve and to reform their act.
