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Report No. 35

1051. Procedure-replies regarding.-

Important suggestions with reference to principles have been noted above1. Certain suggestions in matters of detail with reference to procedure are contained in some of the replies, which may now be summarised.

One group of suggestions consists of those replies, wherein it has been stated that the President or the Governor, etc., should refer every case to an Advisory Board or Committee.

1. Paras. 1027-1050, supra.

1052. The Chief Justice of a High Court1 has stated that the working convention would be that no such remission, suspension or commutation of sentence can be made except with the concurrence of the Attorney General (in the Union) or of the Advocate-General (in the States). This, it is stated, may prevent misuse of the power of pardoning and reprieving conferred by law, and it may even be worthwhile to amend sections 401 and 402 of the Code of Criminal Procedure, 1898, so as to make the concurrence of the Advocate General mandatory. It has been further stated by him that the Advocate General's statutory power under the Code of Criminal Procedure is recognised under section 333 of that Code; hence, by making suitable amendments to sections 401 and 402, a new authority is not introduced in the scheme.

1. Chief Justice of a High Court, S. No. 317.

1053. It has been stated by a High Court Judge1, that the opinion of the Judge who passed the death sentence and of the Judge who confirmed the death sentence in appeal or at a later stags should be invited by the executive authority as in England, before the final decision is taken.

1. S. No. 396, replies to questions 11(a) and (b).

1054. Another High Court Judge1 has emphasised that some procedure of independent consultation would help a proper exercise of this high prerogative of mercy or clemency in suitable cases, to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law; or to ameliorate the deterrent effect of a particular judgment considering all mitigating circumstances all of which could not be considered or taken into account in a court of law.

1. S. No. 397.

1055. Some High Court Judges1 have stated that there ought to be a Board of Advisers of a high calibre to advise the President or the Governor; the Board may partly consist of a retired Judge of the Supreme Court or of a High Court. Another High Court Judge2 has expressed the opinion that this power should ordinarily be exercised only in cases in which the court makes recommendations in this behalf.

1. Chief Justice of a High Court, and a High Court Judge, S. No. 147.

2. A High Court Judge, S. No. 147.

1056. The suggestion of a Member of a State Legislature1 is that the powers should be exercised by the President on the basis of the advice given by an Ex-Chief Justice of the Supreme Court, and by the Governors, on the basis of the advice given by an Ex-Chief Justice of a High Court.

1. S. No. 248.

1057. Certain District and Sessions Judges1 have stated that the approach should be judicial and objective, and that the High Court or the Supreme Court should be consulted.

1. S. Nos. 364, 366 and 372.

1058. A District and Sessions Judge1 has suggested, that while deciding the question of exercising of such powers, proper material on the point should be collected from the District Superintendent of Police and the District Magistrate of the district concerned, as the atrocity of the crime and the effect of remission of the sentence of death would be properly known to these officers.

1. S. No. 387.

1059. In one reply1, emphasis has been laid on the fact that the real agony is in the expectation of death, and it has been suggested that a mercy petition may be provided for in each case after the final verdict of the court has been given, and that the adverse result of the mercy petition should not be communicated to the condemned person till a few minute before the sentence of death is carried out.

1. S. No. 420, under questions 11 and 12.

1060. In some of the replies1-2, it has been stated that there is some delay in disposing of the petitions.

1. S. No. 434, reply of a Principal Judge of a City Civil Court in a Presidency Town.

2. A District Bar Association, S. No. 430.

1061. An eminent member of the Bar1 stages in his reply that the President or the Governor or the State Government should act in consultation with the Supreme Court or the High Court, as the case may be.

1. An eminent member of the Bar (through the Bar Council of India), S. No. 161.

1062. A Bar Association in a High Court1 has expressed its anxiety about the delay in arriving at the final decision about sentences. It has found numerous instances where prisoners sentenced to death have been kept in the condemned cell for 2 1/2 to 3 years, before a final decision is taken either to commute the sentences or to execute them. It has suggested that the judgment in a murder case must be given within a fortnight or three weeks, and the appeal in the High Court or in the Supreme Court and the subsequent exercise of the prerogative should be finished within three months.

1. In reply to question 10, S. No. 493.

1063. A District and Sessions Judge1 has stated that the manner and processes of consideration and decision by the President, Governors and the Government in the exercise of these powers are hardly known, and published literature is not available in India. He has suggested that it would be better if research scholars deal with the subjects, and the files are made available to them.

1. S. No. 487.

1064. It has been suggested by a District and Sessions Judge in Gujarat1 that the procedure should be defined by the Ministry of Law, that the remarks of the highest court which dealt with the case should be obtained and considered, and that the petitioner should be heard in person (and not through a lawyer or representative) by some authority or officer as representing the President, the Governor or the Government.

1. S. No. 488.

1065. One reply1 suggests the creation of an Advisory Board, selected from the judiciary. Another reply2 states that there should be an ad hoc enquiry committee comprising of a High Court Judge, a psychiatrist and a sociologist, and the committee should make a case-study of the offender and extenuating circumstances, if any.

1. A Pleader, Calcutta, S. No. 128.

2. An Inspector-General of Police, S. No. 131.

1066. Another suggestion1 is to the effect that the Attorney-General of India should be consulted. Yet another suggestion is for the constitution of a committee consisting of laymen interested in prisoners' welfare, social welfare workers, religious leaders, and others, who can consider the humanitarian aspects of the case2.

1. S. No. 127.

2. S. No. 118.

1067. It has been suggested by a Bar Association1 that the petition should be referred to the last court which sentenced the person concerned (with a recommendation, if any) and the court's decision should be final, and that this should apply to imprisonment as well. A retired High Court Judge2 has made an elaborate suggestion, the gist of which is as follows:-

(i) The High Court concerned (or the Supreme Court, if it has finally dealt with the case on merits) should be consulted before action is taken under Article 72 or Article 161 of the Constitution or sections 401-402 of the Code of Criminal Procedure except where the President acts on grounds of high public policy.

(ii) When the opinion of the High Court or the Supreme Court is not accepted, the order passed should state the reasons, which should be suitably publicised.

(iii) This would operate as a wholesome check against Government interference on political grounds.

(iv) This safeguard should be there not only in case of death sentence but also in case of life imprisonment.

1. The Supreme Court Bar Association, S. No. 110.

2. A retired Judge of the Bombay High Court, S. No. 95.

1068. An Inspector-General of Police1 has also made an elaborate suggestion as follows:-

(i) The mercy petition should pass through the State Government with their comments on each points raised, if any, but without their recommendation for or against the said petitioner, together with other details.

(ii) There should not be any scope for simultaneous mercy petition both to the President and to the Governor.

(iii) Once the petition has been disposed of by the President, no petition should lie to the Governor,

(iv) Priority at all levels should be given to those petitions so as to ensure their expeditious disposal by the authorities concerned.

1. An Inspector-General of Police, S. No. 143.

1069. The Government1 of a Union territory has suggested that the recommendation of the court awarding the penalty, and of the State Government, and of any social body concerned with welfare, may be taken into account.

1. Government of a Union Territory, S. No. 164.

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