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Report No. 35

Topic Number 54

Replies to question 11(a)

1002. Replies to question 11(a).-

Question 11(a) in our Questionnaire was as follows:-

"(a) Have you any suggestion to make with respect to the power of the President and the Governor to grant pardon, reprieve, respite or remission in respect of the punishment of death or to suspend, remit or commute the sentence of death under Articles 72 and 161 of the Constitution and the power of the Government to suspend, remit or commute such sentence under sections 401-402, Criminal Procedure Code?".

A very large number of replies to this question express general satisfaction with the powers contained in the existing provisions.

But it must be noted that certain replies suggest restrictions on these powers in matters of detail, and since such replies have been received from various sources (including a few State Government and High Courts also), it would be desirable to state here the important points made in those replies.

1003. The principles on which these powers are exercised have been stated in a reply coming from a very knowledgeable source1, the gist of which is as follows:-

The exercise of power of the President to grant pardon to or commute the sentence of death, under Article 72 of the Constitution, or that of the Governor under Article 161 and sections 401 and 402, Criminal Procedure Code, depends upon certain extenuating circumstances such as the following:-

(i) where the murder was committed without pre-meditation, in a sudden quarrel, or without any intention to kill; or

(ii) under provocation, or in furor brevis, or

(iii) where the offender was a person of abnormal mind.

1. A retired District and Sessions Judge (Formerly Law Secretary to a State Government and Secretary to the President), S. No. 139.

1004. One of the High Courts1 has stated that the President and the Governor should not exercise these powers unless they receive satisfactory proof that the conviction is against facts, or that the courts have not properly exercised their discretion in awarding capital punishment. They should take the facts found by the courts as correct, and should not "sit in judgment" over the courts.

1. A High Court, S. No. 187.

1005. A suggestion made by certain High Court Judges1 is that some provision should be made laying down the conditions under which the President or the Governor can commute the sentence, etc. On legal aspects, it is stated, the decision of the court should be final, and a mercy petition should be entertained only on some other ground, e.g., changed circumstances.

1. Two High Court Judges, S. No. 97.

1006. Some High Court Judges1 have suggested that pardon or reprieve should be granted on very rare occasions on special grounds and in very hard cases, and not for political reasons and certainly not for cold-blooded murders.

1. Two High Court Judges, S. No. 154.

1007. One suggestion is to the effect that the judiciary should always be supreme, and the power of pardon should be taken away.1

1. S. No. 117.

1008. A Bar Association1 has stated that these powers should no longer remain with the President or the Governor, and that while the petition may be addressed to the President or the Governor, It should (if the executive so thinks fit) be referred to the last court which sentenced the person concerned (with a recommendation, if any), and the decision of that court in the matter should be final.

Certain other points have been made, which will be dealt with later2.

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

2. See discussion relating to question 11(b).

1009. An Inspector-General of Police1 has suggested deletion of sections 401 and 402, Criminal Procedure Code, on the ground that in the interest of administration of justice, it is not necessary or desirable to empower the Government to exercise powers almost similar to those conferred by the Constitution on the President and the Governor.

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

1010. Another suggestion1 is that the power should be exercised by the President only (who is elected as the supreme authority of the country), and that to avoid clash and confusion, it would be better if the Governor is not given the power. One Bar Council has stated that the provisions in sections 401 and 402, Criminal Procedure Code, need not be retained, and only the powers under the Constitution may be continued.

1. A Bar Council, S. No. 132.

1011. The Judicial Section of the Indian Officers' Association1 in a State has stated:-

"The President, being the repository of the supreme temporal power and grace and the symbol of all that is best of the nation, should have unfettered discretion in the exercise of his power to grant pardon. The grant of pardon by the Governors, however, in respect of sentences of death should be limited to commutation to imprisonment for life. This is necessary to preserve the element of deterrence and (to prevent) chance of factors otherwise than strict compassion coming into play to render nugatory the decisions of the highest tribunals of the land.".

1. S. No. 562.

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