news details |
|
|
| Cry for clemency | | Rule of law can’t be rendered ineffective | | by K.N. Bhat
With the cry for clemency by our politicians and professional human rightists building up to a crescendo and with an assured long waiting period of the mercy plea, one is likely to forget who this Mohammad Afzal is. Be assured that it is the same person about whom our Supreme Court in a recent judgment said: “The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in the treacherous act. The appellant who is a surrendered militant and who was bent upon repeating the acts of treason against the nation is a menace to the society and his life should become extinct”. It is this judgment that will be rendered ineffective if the pardon is granted.
Kehar Singh, among others, was sentenced to death in connection with the assassination of Mrs Indira Gandhi. The Supreme Court of India confirmed the sentence. Rajinder Singh, son of Kehar Singh, presented a petition to the President of India for grant of pardon under Article 72 of the Constitution. A letter followed the mercy petition from Kehar Singh’s lawyer seeking an opportunity for personal hearing and also urging the President to go into the merits of the matter once again - even after three courts, including the highest court, concurrently found him guilty of murder.
The Secretary to the President of India sent a prompt reply refusing to grant an opportunity of personal hearing. In addition, he conveyed that the President was of the opinion that he could not go into the merits of the case decided finally by the highest court of the land. Rajinder Singh came to know on November 30, 1988, that the date of execution of his father was fixed for December 2, 1988. He unsuccessfully moved the High Court for stopping the execution and then approached the Supreme Court questioning the legality of the Presidential communication that he had no power to re-examine the merits of the decision of the highest court.
A five-Judge Bench presided over by Chief Justice R.S. Pathak reiterated the law laid down by another Constitution Bench in 1981 that the President, in the matter of exercise of pardoning power under Article 72, acts solely on the aid and advice of the Council of Ministers - not on his own - and the advice of the government binds the Head of the State. They held that there was no necessity for an oral hearing by the President. But the verdict was also that the President- i.e., the government, was entitled to re-examine the records of the case and to determine for himself whether the case deserved the grant of the relief of pardon.
And the court further declared that the order of the President could be subjected to judicial review to a limited extent of determining whether ‘the act of the Constitutional functionary falls within the Constitutional conferment of power or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power”.
Misunderstanding of this pronouncement appears to be the single most important cause of long life for mercy petitions. And when Babus have read “entitled” as “obliged” to examine the records of a complicated criminal case all by themselves, unless the convict is destined to be hanged, will more likely suffer natural death. (Apologies to Shakespeare). It is said that Rajiv Gandhi’s killers are yet to be executed, because mercy petitions are pending.
Article 72 of the Constitution confers the power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 confers corresponding powers on the Governors relating to offences under any law to which the Executive power of the State extends. In recent times a feeling that grant of pardon or exercise of powers of remission are influenced by extraneous considerations is growing. The scope of judicial review of such decisions of Governors and Presidents has been receiving a continuing attention of the Supreme Court. It is understood that before the Supreme Court of India, there are a large number of pending petitions by friends of victims of crime questioning the legitimacy of the orders of pardon or remissions by Governors.
In Epuru Sudhakar & Anr. versus Govt. of A.P. & Ors.- a petition by the son of a murder victim in Andhra Pradesh - decided by the Supreme Court on October 11, 2006 - has stunning revelations. The husband of a ruling party MLA with impressive record of multiple murders was to undergo another seven years of sentence. After Dr. Y.R.Reddy became the Chief Minister, the convict not only enjoyed several terms of parole, but was, in fact, set free by an order in the name of the then Governor Sushil Kumar Shinde.
One of the reports recommending remission said that the prisoner was a “good congress worker”! The court quashed the order of remission and in the process, clearly stated that the Governor’s or even the President’s orders of pardon or remission can be judicially reviewed. Kapadia J. in his concurring judgment summed up the court’s view as follows: “Consideration of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be the subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency”.
Kehar Singh was not pardoned — in fact executed — despite the fact that his conviction was also based on circumstantial evidence. And many experts then had commented that on the evidence on record no one would hang even a stray dog. And there is no record of his wife having been invited for tea in Moghul Gardens. The government of the day was alive to the limitations of its pardoning powers — and Rashtrapati Bhavan at the time had concern for public sentiments.
In the Bombay blast case, the process of pronouncement of judgment is proceeding like a soap opera - in easy installments. Ultimately when the time arrives for the pronouncement of sentence - hopefully sometimes in the year 2007 - it is likely that many of the accused will be sentenced to death. Any wrong precedents of securing pardon through public outcry would encourage more chief ministers - past, present and future - to raise a chorus for mercy - may be with Afzals as cabinet ministers lending their voices.
Fortunately, our Constitution guarantees to every person - not just to citizens - “equal protection of laws”. And we have a common Criminal Code - Shah Bano aberration apart. But for this, if popular demands were to determine the course of administration of criminal justice, the offenders who virtually waged war against this nation, would have been tried and sentenced as prescribed by Sharia - an eye for an eye. And there the sentence and execution in public are separated by the shortest of intervals - with no scope for the intervention of a mercy petition.
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
| |
|
|
|
|
 |
|
|
