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Report No. 35


Topic Number 56

Need for retaining the Power

1020. Need for retaining the Power.-

A question that is often put is whether the President and the Governor should have the power of commutation, and queries are raised as to whether the executive should be allowed to override the decisions of the judiciary. When the case of a person has reached the highest tribunal in the land, and the conviction and the sentence of death have been upheld by that tribunal, would it not, it is asked, be derogatory to the prestige of that tribunal to commute the sentence on whatever grounds?.

1021. Essential nature of prerogative of mercy.-

Answer to this question requires an understanding of the essential nature of this power. It is a "prerogative", and an illustration of "that special pre-eminence", which the head of the State possesses. Its existence and exercise are not, in any way, construed as interference with the judiciary. Secondly, the expression "mercy" indicates the scope of, as well as the justification for, the power. With the best precautions in the world, cases must occur where facts, not known to the court, exist which justify the exercise of this prerogative. The following observations, in an American case1, express, in a beautiful language, the nature of this power:-

"Executive clemency exists to afford relief from undue harshness or evident mistakes in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts, power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special cases.

To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation, in confidence that he will not abuse it.".

1. Ex parte Grossman, (1924) 69 Law Ed 527: 261 US 287, cited Channugadu (in re:), AIR 1954 Mad 911 (916, 917).

1022. The meaning and significance of the prerogative of mercy has been very well described by Sir Frank Newsam, who was Permanent Under Secretary of State for the Home Department1, in these words:-

"Maintenance of the Queen's Peace demands careful and impartial enforcement of the law by the judiciary. But law is made for man; justice is more than codes and precedents; and there are occasions when justice and humanity demand that there shall be interference with the due course of law-that is, exercise by the Crown of the Prerogative of Mercy".

Joseph Chitty put the matter thus-

"Human institutions are fallible, and must in many respects be imperfect. No human faculties can anticipate the various temptations which may urge a man to the commission of an offence; or foresee all the shades in the circumstances of a case which may extenuate the guilt of the accused. An offence may be within the letter, but foreign to the general scope and spirit of the law.

As, therefore, society cannot sufficiently provide for every possible transgression of its ordinances, and measure by anticipation the degree of guilt which may attach to the offender, it has entrusted the King with the power of extending mercy to him. The King is, in legal contemplation, injured by the commission of public offences; his peace is said to be violated thereby, and the right to pardon cannot be vested more properly than in the Sovereign."2

The use of the prerogative is not confined to mitigating unreasonable hardships. It extends also to righting wrongful convictions3.

1. Sir Frank Newsam The Home-Office (The New White-Hall Series), 1955 MP 113.

2. Chitty's Prerogatives of the Crown, (1820), p. 88-89, cited in Sir Frank Newsam. The Home Office, (1955), p. 113.

3. Sir Frank Newsam The Home Office, (1955), p. 113.

1023. The observations of Holmes J. in an American case may also be referred to as explaining the true nature of the power. In that case, the death sentence of a convict had been commuted to life imprisonment by President Taft in 1909. After nearly two decades of prison life, the prisoner concluded that "he would be better off dead", and attacked President Taft's in action as a pardon which he had not accepted.1 Holmes J. observed2-3:-

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." (Life imprisonment was held to be less than death).

1. See Prichert American Constitution, (1959), p. 32.

2. Biddle v. Perovic, (1927) 274 US 480.

3. Generally as to the position in U.S.A., see Corwin-Constitution of the U.S.A.," Analysis and Interpretation, (1952), p. 389 (under Article 2, section 2, clause 1), and p. 407 (case-law), and p. 407, footnote 5 (literature).

1024. As observed in a leading study of the American President1, it is demanded that the capacity to forgive shall be the strongest of his impulses.

1. Sidney Hyman, the American President, (1954).

1025. Recommendation for retention of the powers.-

It may be argued that in a country like India, where the sentence of death is not mandatory and the court is free to consider the circumstances relevant to the question of sentence, this power is not needed. We are not, however, inclined to agree with this view. There are many matters which may not have been considered by the courts. The hands of the court are tied down by the evidence placed before it.

A sentence of death, passed by a court after consideration of all the materials placed before it, may yet require re-consideration because of (i) facts not placed before the court; (ii) facts placed before the court, but not in the proper manner; (iii) facts discovered after the passing of the sentence; (iv) events which have developed after the passing of the sentence; and (v) other special features. Nor can one codify and select these special features, which would be too numerous to lend themselves to codification. For these reasons, we do not recommend any change in the scope of these powers1.

1. Figures of mercy petitions are given separately.

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