Execution Suspension Remission and Commutation Sections 453 to 477

⚠ Section 456 and section 468

Section 456 is a provision of some antiquity and considerable humanity. Where a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life. It is not a discretion and not a postponement: the sentence is commuted.

Section 468 is the set-off provision, and it is invoked constantly. Where an accused has, on conviction, been sentenced to imprisonment for a term, the period of detention undergone by him during the investigation, inquiry or trial of the same case, and before the date of that conviction, shall be set off against the term of imprisonment imposed, and his liability shall be restricted to the remainder.

The two together illustrate what the Chapter is for: the mechanics of carrying a sentence into effect, with the adjustments the law considers just.

Section 472, BNSS 2023 — the substance

(1) A convict under a sentence of death, or his legal heir or any other relative, may, if he has not already submitted one, within thirty days from the date of receipt of information that the appeal or special leave petition has been dismissed by the Supreme Court, or that the sentence has been confirmed and the appeal disposed of, submit a mercy petition before the Governor of the State under Article 161.

(2) Where the petition is rejected by the Governor, the convict may, within sixty days of that rejection, submit a mercy petition to the President under Article 72.

(3) The Superintendent of the jail shall ensure that every convict, where he has no legal heir, is informed so that he may submit a petition within the period the section allows.

(4) On receipt of a mercy petition, the Central Government shall call for the records and the comments of the State Government and consider it along with them.

(5) After the petition is disposed of, the Central Government shall within forty-eight hours communicate the decision to the Home Department of the State Government and to the Superintendent of the jail.

(6) Where there are more convicts than one in a case, the petitions shall be disposed of together.

📖 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

Facts: Convicts under sentence of death sought commutation on the ground that there had been an inordinate and unexplained delay in the disposal of their mercy petitions, and on grounds of mental illness and the conditions of their confinement.

Held: The Supreme Court held that undue, inordinate and unreasonable delay in the execution of a death sentence, including delay in the disposal of a mercy petition, is a supervening circumstance entitling the convict to approach the Court for commutation of the sentence to imprisonment for life. The Court held that the agony of awaiting execution while the petition remains undecided is itself a dehumanising factor, and that Article 21 continues to apply to a convict until his last breath. It rejected the contention that the nature of the offence is relevant to the delay question, holding that once the sentence has been confirmed the nature of the offence has already been taken into account. The Court also held that insanity or mental illness supervening after sentence is a ground for commutation, and issued guidelines — among them that the mercy petition should be decided expeditiously, that the rejection be communicated in writing to the convict and his family, that a minimum period of fourteen days elapse between the communication of rejection and the execution, that the convict be given legal aid and a final meeting with his family, and that regular mental health evaluations be provided.

Ratio: Inordinate and unexplained delay in deciding a mercy petition or in executing a death sentence is a supervening circumstance entitling the convict to commutation, and supervening mental illness is likewise a ground. Guidelines were issued for the procedure after rejection.

📖 Triveniben v. State of Gujarat, (1989) 1 SCC 678 (Constitution Bench)

Facts: Convicts under sentence of death contended that the long delay which had elapsed since the sentence was pronounced entitled them to have it commuted, and the Constitution Bench was required to decide whether and on what basis delay may be relied on.

Held: The Constitution Bench held that undue long delay in the execution of a sentence of death entitles the condemned person to approach the Court to examine whether it is just and fair to allow the sentence to be executed, and that the Court may consider the question of inordinate delay in the light of all the circumstances to decide whether execution should be commuted to imprisonment for life. But it held that no fixed period of delay can be laid down as making the sentence inexecutable, and that the Court is not entitled to reopen the conclusion on guilt or the propriety of the sentence — what it examines are the circumstances arising after the final judicial verdict. The Court held that delay caused by the convict’s own conduct in filing successive petitions cannot be relied on by him, and that the nature of the offence and the circumstances in which it was committed are relevant when the Court considers whether the delay warrants commutation.

Ratio: Undue long delay in executing a death sentence entitles the convict to have the Court examine whether execution remains just and fair, but no fixed period can be laid down, and delay caused by the convict’s own conduct cannot be relied on by him.

⚠ Section 472 and the constitutional power

The section also provides that no appeal shall lie in any Court against the order of the President or the Governor made under Article 72 or 161, and that it shall be final.

That must be read with the settled constitutional position. The merits of a clemency decision are not examined by a court, and the Court does not sit in appeal over the executive’s judgment of what mercy requires.

But the exercise of the power remains subject to limited judicial review on the grounds the Supreme Court has laid down — that it was exercised on irrelevant considerations, in mala fides, without application of mind, or arbitrarily. An ordinary statute cannot exclude the constitutional supervision of the exercise of a constitutional power.

What section 472 contributes is the procedure and the timetable — the thirty days and the sixty days, the duty of the jail Superintendent to inform, the records and comments from the State, the forty-eight hour communication, and the requirement that petitions of several convicts be disposed of together.

The position stated shortly

1. Chapter XXXIV governs what happens after the judgment: the execution of sentences, and the executive powers of suspension, remission and commutation.

2. Section 453: on receiving the High Court’s order of confirmation, the Court of Session issues a warrant for execution. Section 455 provides for postponement pending an appeal to the Supreme Court.

3. Section 456: where a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life.

4. Sections 461 to 463: a fine is levied by attachment and sale of movable property, or as arrears of land revenue.

5. Section 468: the period of detention undergone during investigation, inquiry and trial shall be set off against the term of imprisonment imposed.

6. Section 472 is new. A convict under sentence of death, or his legal heir or relative, may petition the Governor under Article 161 within thirty days, and on rejection the President under Article 72 within sixty days.

7. The Superintendent of the jail must inform a convict who has no legal heir; the Central Government calls for the records and comments of the State; and the decision is communicated within forty-eight hours.

8. Where there are several convicts in one case, their petitions are disposed of together.

9. Inordinate and unexplained delay in deciding a mercy petition or executing the sentence is a supervening circumstance entitling the convict to commutation, as is supervening mental illness: Shatrughan Chauhan.

10. But no fixed period can be laid down, the Court does not reopen the conviction or the sentence, and delay caused by the convict’s own conduct cannot be relied on by him: Triveniben.