Report No. 41

Chapter XXIX

Suspensions, Remissions and Commutation of Sentences

29.1. Provisions ancillary to powers under the Constitution.-

The provisions of this Chapter are ancillary to the powers conferred on the President of India and the Governors of States by Article 72 and Article 161, respectively, of the Co.- situation. Both these articles first refer to the power to grant pardons, reprieves, respites or remissions of punishment, and then, to the power to suspend, remit or commute the sentence, of any person convicted of any offence. Section 401 contains detailed provisions in regard to the suspensions and remissions. of sentences, while section 402 deals with the commutation of sentences. Following Article 72(1)(c) of the Constitution, section 402A makes the powers conferred by sections 401 and 402 on the State Governments in respect of the State field of offence exercisable also by the Central Government.

29.2. Prerogative of mercy in England.-

It is noteworthy that these sections do not circumscribe in any way the power of the President and Governors to grant pardons, reprieves and respites, which is analogous to the sovereign's prerogative of mercy in England. This is described as follows by a writer1 on English constitutional law.-

"The Sovereign, acting in this country by the Home Secretary, may pardon offences of a public nature which are prosecuted by the Crown. A pardon may generally be granted before or after conviction. No pardon may be pleaded as a bar to impeachment (Act of Settlement, 1700),2 although some Scottish lords impeached for the rebellion of 1715 were pardoned after conviction; nor may the Crown remit the penalties prescribed by the Habeas Corpus Act, 1679, for sending a prisoner out of the realm; and the Crown cannot by a pardon deprive a third party of his rights.3

A pardon is either free or conditional. An example of the latter is where a death sentence is commuted to a term of imprisonment for life. The Home Secretary 'acts either on a recommendation to mercy by the Judge who passed the sentence, or on a petition from the criminal or others on his behalf. In considering whether to advise a pardon the Home Secretary is responsible to the Sovereign and not to Parliament. The practice whereby the decision is made by the Home Secretary and not by the Sovereign dates from the beginning of Queen Victoria's reign.

The Crown may also grant a reprieve, which temporarily suspends the execution of sentence; or (within statutory limits) may remit the whole or part of the penalty." all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man. But the same effect does not follow on a mere remission which stands on a different footing altogether. An order of remission does not wipe out the offence; it also does not wipe out the conviction.

All that it does is to have an effect on the execution of the sentence. x x x 'The judicial power and the executive power over sentences are readily distinguishable', observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment'."

1. O. Hood Phillips Constitutional Law, (1962), p. 256.

2. Cf. Danby's case, (1679) 11 St Tr 599

3. Thomas v. Sorrell, 1674 Vaughan 330.

29.3. Effect of granting pardon.-

In India, as in England,1 "the effect of a pardon, or what is sometimes called a 'free pardon' is to clear the person from

1. Sarat Chandra Rabha v. Khagendranath, (1961) 2 SCR 137 (138).

29.4. Consulting the Court before granting pardon.-

In connection with the grant of "free pardon" to a convicted person, we have considered a suggestion of the Ministry of Home Affairs that the Government should be required to consult the appropriate court before granting pardon. In this suggestion it is stated that where pardon is proposed to be granted on the ground of miscarriage of justice or discovery of new evidence, the practice in England is to consult the Judges and a reference has been made to section 19 of the Criminal Appeal Act, 1907.1 This section, however, does not go to the length of providing that a reference must be made in every case but leave's it entirely to the discretion of the Secretary of State.

We are not aware whether it is invariably the practice in England to refer the whole case or particular points to the Court of Appeal before exercising the prerogative of mercy. However that may be, since the power to grant pardons is derived from the Constitution, it would, in our view, be hardly appropriate to lay down by statute the procedure for the exercise of the power, even if it were constitutionally permissible, a matter about which we have some doubts. Nor do we see any compelling need to do so. It will be noticed that, even in regard to suspensions and remissions of sentences, prior consultation of the court is not made compulsory under section 401(2) of the Code. And it is very seldom, if ever, that the Government seeks the opinion of the presiding judge of the court under this section.

1. This section as recently amended by the Administration of Justice Act, 1960, read.-

"Nothing in this Act shall affect the prerogative of mercy, but the Secretary of State, on an application made to him by a person convicted on indictment or without any such application, may if he thinks fit at any time, eithe.-

(a) refer the whole case to the Court of Criminal Appeal and the case should then be treated for all purposes as an appeal to that court by the person convicted; or

(b) if he desires the assurance of the Court of Criminal Appeal on any point arising in the case, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Secretary of State with their opinion thereon."

29.5. Nature of the other powers.-

As mentioned earlier, Articles 72 and 161 of the Constitution first refer to the power to grant pardons, reprieves, respites or remissions of punishments, and then, to the power to suspend, remit or commute the sentence, of any person convicted of any offence. "Reprieve" means to take back or withdraw a sentence for a time, the effect being simply to suspend the execution of the sentence. It is no more than a temporary postponement and, in England, is used as the first step in commuting a death sentence. The term "respite" means delaying the punishment, specially in the case of a death sentence, and means much the same as a reprieve.

It would seem that granting a reprieve or respite of punishment is practically indistinguishable from suspending the execution of the sentence awarded by a court for a temporary period. "Remission" originally meant a pardon under the Great Seal and a release but latterly it came to mean the same as a reduction of the quantum of punishment (e.g., amount of the fine imposed or term of imprisonment awarded) without changing its character. "Commutation" means the alteration of a sentence of one kind into a sentence of a less severe kind, as indicated in section 402 of the Code.

29.6. Scope of section 401 not to be enlarged.-

The use of these two sets of expressions in Articles 72 and 161 of the Constitution is traceable to section 295 of the Government of India Act, 1935. Su.-section (1) of this section referred to the power of the Governo.-Genera.-i.-Council to suspend, remit or commute the sentence of any person convicted by a Court, while su.-section (2) referred to the right of the Crown to grant pardons, reprieves, respites or remissions of punishments. The Constitution has lumped together both these powers and placed them on the same footing. The overlap that obviously exists does not harm. There is, however, no need to enlarge the scope of section 401 of the Code so as to cover expressly pardons, reprieves and respites besides suspensions and remissions.

29.7. General provision as to effect of remission or commutation of sentence desirable.-

The question of inserting in the Code a provision on the lines of section 69 of the Criminal Justice Act, 1948, was raised during the discussions before us. This section provides that "where Her Majesty pardons any person who has been sentenced to death on condition that he serves a term of imprisonment, that person shall be deemed to have been sentenced by the Court before which he was convicted. to imprisonment for the said term. It was suggested, for example, that if a person was sentenced to imprisonment for a term by the court and a part of this sentence was remitted by the State Government, or the sentence was commuted to one of fine, the convicted person should be deemed to have been sentenced to the shorter term of imprisonment or, as the case may be, to fine only by the Court.

This could be of practical importance because many Acts provide for collateral disqualifications in the case of a person convicted for an offence and sentenced to imprisonment, for a specified minimum term. We have, however, come to the conclusion that the gravity of the offence for which the law provides such disqualification should depend on the sentence awarded by the Court and not on the view which the State Government may take while remitting or commuting the sentence. In any event, this is essentially a question of policy and if such an amendment is considered desirable in the context of a particular special law, it may more appropriately be made in that law.