Report No. 35

Topic Number 57(a)

Principles and procedure for exercise of prerogative of mercy

1026. Question 11(b).-

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

"What, in your opinion, should be the principles which should guide and the procedure which should be followed in the exercise of these powers?".

1027. Principles-replies regarding.-

A number of replies have stated that these principles cannot be laid down or codified or stated precisely. Certain replies, while suggesting broad principles, make it clear, that these principles can be taken only as a good guide. Thus, one reply1 states that the Home Secretary take into consideration not only the life history of the prisoner, but also the motives and mental condition. So, also, the state of the popular feeling is taken into account.

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

1028. The reply refers to the views expressed in 1907 by Herbert Gladstone, Home Secretary1, emphasising that numerous considerations are relevant and that it does not depend on principles of strict law and justice, still less of sentiment. It is a question of policy and judgment in each case."

The reply also points out that if the scrutiny of evidence shows that there is a scintilla of doubt about the guilt of the prisoner, it would be a fit case for the exercise of clemency.

1. The reference seems to be to the speech of Mr. Herbert Gladstone (Home Secretary) on 11th April, 1907-Parliamentary Debates, Fourth Series, Vol. 172, Col. 366. Also see his speech on 31st May, 1907 on the Criminal Appeal Bill, Parliamentary Debates, Fourth Series, Vol. 175, column 187.

1029. Some of the considerations that may be taken into account have been thus enumerated by one State Government1-age, sex, mental deficiency of the accused, circumstances of the case, (e.g., whether the offence was committed under grave and sudden provocation, etc.).

Some High Court Judges2 have stated that some of the principles which may be borne in mind seem to be these The power may be exercised:-

(i) where there are mitigating circumstances which may not have received sufficient attention in the courts;

(ii) when, after conviction, circumstances are brought to light indicating that the conviction was wrong;

(iii) speaking generally, to harmonise the dictates of law and justice where they may operate divergently, or, putting it in other words, to prevent a clear miscarriage of justice.

1. A State Government, S. No. 129.

2. Two High Court Judges, S. No. 147.

1030. Some High Court Judges1 have suggested that no reprieve should be granted unless it is recommended by the High Court. That this limitation should ordinarily be recognised, is a suggestion made by another High Court Judge2. It has also been suggested by one State Government3 that these powers should not be exercised to short-circuit the legal process of the court. "Regarding principles I am to suggest that some directive principles may be issued by the Central Government for the guidance of the State Governments. Such executive directive principles may include the circumstances which should be based on usual distinction between crime of murder involving personal disputes and crime involving, security of the State."

1. Two High Court Judges, S. No. 105.

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

3. A State Government, S. No. 129.

1031. One of the State Government1 has pointed out that powers relating to grant of pardon are co-related to the sentiments of mercy, and the principles cannot be codified.

1. A State Government, S. No. 154.

1032. Another State Government1 has suggested that while the procedure does not call for a change, it would be better if certain principles are indicated to serve as a guide in the disposal of such petitions, and states that there are no fixed principles in these cases-which is not a very happy state of affairs. The points made in the reply are:-

1. A State Government, S. No. 182.

(a) a general principle may be laid down that the finding of fact recorded by the High Court or the Supreme Court, as the case may be, should be accepted as correct, (while dealing with the petition of mercy), and no attempt should be made at diluting the effect of the finding of fact recorded in the judgment;

(b) broadly speaking, a commutation may be permitted on the ground of

(i) age;

(ii) provocation;

(iii) past conduct;

(iv) the fact whether the accused-at the time of the commission of the offence acted under the influence of another in circumstances in which he could not possibly exercise his independent judgment; and

(v) similar other grounds.

1033. An eminent member of the Bar1 has stated that the principles which should guide the President, etc., in the exercise of their powers should be either humanitarian or should enable the respective authorities to take into consideration what the courts, in the existing state of law, would not be entitled to consider.

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

1034. He has also expressed1 the view-an opinion shared by a Bar Council2- that neither the President nor the Governor should have power to give pardon, reprieve, respite or remission in respect of the punishment of death or suspend etc., a sentence either under the Constitution or under the Criminal Procedure Code while the ordinary judicial process is still incomplete.

1. An eminent member of the Bar, S. No. 161.

2. A Bar Council, S. No. 159.

1035. It has also been stated1 that in extremely revolting arid heinous cases of murder, which are committed as a result of conspiracy, none should have the power to commute the sentence.

1. A Member of Parliament and Deputy Minister, S. No. 210.

1036. One of the principles1 suggested as a guide is whether the condemned person was, in the first instance, acquitted by the inferior court or whether there was any difference of opinion in the Judges in the High Court or the Supreme Court.

1. An Advocate, S. No. 201

1037. The view of a State Government1 is that the theory of "scintilla of doubt" in the matter of exercise of the prerogative right of pardon need not be introduced in this country. All relevant circumstances must be taken into consideration, but the doubt as to evidence in the case should not be taken into consideration, and must be left exclusively to the judges. If, however, there are factors which show that the evidence recorded did not accurately reflect the true state of facts, and these circumstances had been so manipulated that detection of such manipulation was not possible during the trial, then, according to that State Government, the power of pardon may be exercised.

1. S. No. 574.

1038. Another State Government1 has expressed the view that it is not possible to state the principles and that the matter should be left to the "wise counsel and superintending authority" of the President, the Governors and the Government.

1. S. No. 560.

1039. According to another State Government1, there should be no fetters on the powers, as these powers are in the nature of prerogative and the Legislature need not transgress on these powers.

1. S. No. 242.

1040. According to the Chief Justice of a High Court1, the principles which should be observed by the President, the Governors and the Government in the exercise of these powers should be, that if no new facts and circumstances, not already on the record of the murder case, are alleged in the mercy petition, then the power of pardon, respite, and remission should not be exercised.

Where new facts and circumstances are sought to be adduced, steps should be taken to record such evidence, and the record should be placed before the Judge who convicted the accused or confirmed the sentence, for his views as to whether, in view of the fresh evidence, he would recommend any remission, or pardon, etc; and action should be taken according to the view of the Judge.

In this regard, no particular procedure is necessary so far as consultation with the Judge is concerned, but, where facts are alleged or certain evidence sought to be adduced which are not on the record of the murder case, it would be advisable for the Government to appoint a Commissioner or a Tribunal to record fresh evidence and submit its report, and this report should be sent to the Judges while consulting them in the matter of remission, pardon, etc.

1. Chief Justice of High Court, S. No. 393.

1041. According to a High Court Judge1, these powers should not be fettered by a legislative enactment, but the principles which should guide the executive in the exercise of the powers are to correct possible judicial errors or to relieve a convict from a sentence which is mistaken, harsh, or disproportionate to the crime. In a proper case, it may also be guided by policy considerations so as to meet the justice of the case. That the guiding principles should be to meet the justice of the case where it is pre-eminently necessary to do so has been emphasised in the reply of another High Court Judge2.

1. A High Court judge, S. No. 394.

2. A High Court Judge, S. No. 395.

1042. A High Court Judge1, who is not in favour of the codification of the principles, has stated that as long as the executive acts in a bona fide manner, it will be acting correctly.

1. A High Court Judge, S. No. 262.

1043. The Law Minister of a State1 has stated that it is not possible to state the principles, but generally the President or the Governor should exercise the power to grant pardon whenever there is evidence of some circumstance which could not be admissible in a court of law or when there are some over-riding circumstances which can outweigh the evidence on which the courts normally act. He has added that, as the circumstances cannot be anticipated, complete discretion should be left to the Executive.

1. S. No. 313.

1044. The Law Minister of a States has state1 that the existing provisions are adequate, but that if the penal law is to be changed so as to reduce the incidence of the capital punishment, then it will be proper to provide that the sentence of death confirmed by the Supreme Court should not be interfered with except in the larger interest of the society.

1. S. No. 253.

1045. A distinguished Member of the Rajya Sabha1, while expressing the view that the principles cannot be given off-hand, has stated that there is need for examining the principles which should guide, and the procedure which should be followed in, the exercise of these powers.

1. S. No. 245.

1046. A Member of Parliament1 has stated that this power should be used very sparingly.

1. S. No. 275.

1047. A senior Advocate of the Bombay High Court1 has stated that these powers are necessary to enable the Executive Government to take into account extra-judicial considerations of policy and humanity. He has, however, also stated that the Home Secretary in England is bound by certain rules, precedents and conventions, so that there is small scope for the free unfettered exercise of individual Will, and that some such rules or conventions are necessary in India. He suggested that it may be useful to establish such conventions as the President consulting a high judicial or legal authority like the Chief Justice of India or the Attorney General, and reports from the original court as well as the High Court may also be called for.

1. S. No. 318.

1048. A District and Sessions Judge1 has stated that respect for public sentiment and safety of the society should be the guiding principles in the exercise of the powers.

1. S. No. 329.

1049. According to another District and Sessions Judge1, when it is felt that some loss to society would be caused or the family of the accused would suffer irreparable loss or when there are circumstances invoking a high degree of sympathy, or when it is felt that the death sentence has been passed in complicated legal circumstances but a practical view could be taken for lesser punishment, then the sentence should be commuted.

1. S. No. 347.

1050. One of the District and Sessions Judges1 has stated that in cases where all the three courts have concurred in the sentence, there should be no interference.

1. S. No. 419.

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