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02 April, 2013

Quality of mercy is strained

BRP Bhaskar
Gulf Today
Political and communal passions often run high in India. Since some parties draw sustenance from communal ideologies it is not always easy to distinguish between political sentiments and communal feelings. Their combined impact is straining the quality of mercy.

The constitution vests in the president and the governors of states the power to grant pardon or commute the sentence of a person convicted of any offence. The provision is in accord with the universally recognised principle of executive clemency, which allows justice to be tempered with mercy.

In the 1960s, in a celebrated case, the Governor of Maharashtra pardoned a navy commander, KM Nanavati, who was sentenced to life for killing his wife’s lover, after he had spent only three years in jail. He was a highly decorated officer and a campaign by a popular tabloid which played up the murder as a crime of passion earned him the sympathy of the middle class.

Nanavati was a Parsi and the deceased a Sindhi, and organisations of the two communities openly took sides. In the event, the government acted only after the deceased’s family stated in writing that it had forgiven Nanavati. It also granted pardon, along with Nanavati, to a Sindhi freedom fighter who had been convicted in another case.

Since then, the Supreme Court has laid down guidelines with regard to grant of pardon. In 1980, a constitution bench ruled that the president and the governors cannot exercise the right of pardon arbitrarily. Also, since they act on the advice of the council of ministers, grant of pardon was an executive action and, therefore, subject to judicial review.

In the USA, the highest court has drawn a distinction between judicial power and executive power. “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law,” Chief Justice William Taft said in a judgement. “The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.”

The thought that courts are not infallible is hard to come by in Indian judicial pronouncements. As things now stand, the last word on grant of pardon rests with the judiciary. The courts can upset the decision of the president or the governor on such grounds as acting without the advice of the council of ministers or on extraneous considerations, transgressing jurisdiction and lack of application of mind.

While the executive and the judiciary are sworn to act without fear or favour, it is unreasonable to expect them to immunise themselves totally against the pressure of public opinion, informed or otherwise. In awarding Afzal Guru the death sentence in the parliament attack case, the apex court had said in so many words that this was necessary to satisfy the collective conscience of the society in an incident which had shaken the entire nation.

The event certainly had shaken the nation but what the capital punishment, which the government carried out secretly in February, satisfied was not the society’s desire for justice but the revanchist sentiments of political elements with a communal agenda wrapped in pseudo-nationalism. They were back in action last week after Press Council of India Chairman Markandey Katju, who is a former Supreme Court judge, called for grant of pardon to Bollywood star Sanjay Dutt, whom the apex court gave a five-year jail term under the Arms Act.

The case against Dutt arose out of his contacts with some of those involved in the Mumbai serial blasts of 1993 in which more than 250 persons were killed. Katju asked that Dutt be pardoned considering his contribution as an actor and his charitable work, factors which modern states generally take into account in deciding such matters. He also pointed out that Dutt had expressed remorse and suffered enough during the past two decades.

Dutt was in prison for a year and a half in the preliminary stages of the case and has to spend three-and-a-half years more in jail in terms of the apex court verdict. Sensing that public opinion in his case is divided, he said he would go to prison and not seek pardon.

The real issue is not the fate of an individual who committed a breach of the law but that of the society which appears to be at the mercy of atavist elements which will not allow justice to be tempered with mercy.-- Gulf Today, Sharjah, April 2, 2013.

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