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| Guru resolution beyond executive power of state: Prof Gupta | | 'No place for appeal if made on political consideration' | | Early Times Report
JAMMU, Sept 26: Strongly contesting inclusion of the resolution on Afzal Guru in the roster of business in the Legislative Assembly, senior most MLA Prof Chaman Lal Gupta today said the Law of the land and on the basis of constitutional guidelines says that 'prayer' for pardon or 'appeal' as it has been projected through the proposed motion, has no place, if it is to be exercised for political consideration or on the basis of religion or caste or colour or political loyalty. Citing some related directives from the Apex court of the country, Prof Gupta has said the resolution sought to be moved by the Member has 'no legs' to stand upon and in the light of the constitutional provisions too, having no relevance in the present context, needs to be withdrawn. Explaining his point for second time in less than three days, the veteran politician asserted that 'appeal' is always by an aggrieved party against whom adverse order or decision is passed. Herein, he observed , so far as awarding of punishment to Afzal Guru is concerned this House is neither a aggrieved party nor it can be and therefore the resolution moved by independent MLA Engineer Abdul Rashid does not stand and therefore the same has to be dropped.
Contending his point with constitutional arguments in support, he said under Section 34 of J&K Constitution, the Governor has the power to grant pardons, remit or commute the sentence of any person, but it is only in respect of commission of offences against any law relating to a matter to which the Executive power of the State extends. "It is therefore to be kept in mind that Governor can exercise powers under section 34 only in respect of offences relating to such matter to which executive powers of this State extends. The offence for which Guru was convicted was committed at Delhi and sentence was passed by Hon'ble Courts at Delhi and upheld by Hon'ble Supreme Court of India", Prof Gupta observed in the press statement . It is as such that the resolution as is sought to be placed before the House does not stand, since the matter is beyond the executive power of the State, he maintained. He reiterated that the power of exercise under Article 72 or Article 161 of Constitution of India, act on the advice of council of Ministers. "It is not open for them to take independent decision in this behalf. …….it is only on the advice of Union Council of Ministers, who have to tender advice to the President of India for the exercise of powers under article 72", Chaman Lal Gupta maintained. He further said the MLA intending to move the resolution has not spelt out the reasons for claiming clemency for Afzal Guru, the other grounds attracting the attention of the Hon'ble President of India for the exercise of Powers under Article 72 of Constitution of India or other such like matters of public importance within the frame work of Constitution of J&K and of India requiring passing of a resolution .
Chaman Lal Gupta has also cited what SC observed and held in a case in 2006:
….- "We shall deal with extent of power of judicial review as highlighted by learned counsels for the parties and learned Amicus Curie before we deal with the factual scenario.
- It is fairly well settled that the exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases.
- In Maru Ram's case (Supra) it was held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala-fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. - It is noteworthy that in Kehar Singh's case (Supra) the contention that the power can be exercised for political considerations was unequivocally rejected. In Maru Ram's case (supra) it was held that consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination…….."
Prof Gupta, in the backdrop of the points he has made afresh in the matter, has urged all the legislators to appeal for withdrawal of clemency resolution from schedule of business. |
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