By L.K. Garg, Advocate
No doubt grant or not to grant the pardon, is a sovereign function, be it in any form i.e. monarchy, democracy, or even mobocracy to which we may be heading for but for the judicial activism. This is so as these authorities are in possession of data, information and other material to consider whether the grant would be in the public interest or not.
To claim privilege from the disclosure of such material is also a justiciable issue. Now, in view of the decision of the Supreme Court pronounced in Epuru Sudhakar and another v. Government of Andhra Pradesh reported as J.T. 2006(9) SC 72, whether the power exercised by the Governor and the President is in accordance with the constitutional spirit is also a justiciable issue.
These situations arise when in the federal form of Government, exercise of power becomes controversial and debatable. Sovereign power on such sensitive issues of national interest should avoid itself from being dragged into controversy and deal with firm hands and tough mind. Example, courageous Blue Star Operation by her Excellency Smt. Indira Gandhi, the Prime Minister of India.
Leniency to a terrorist will not bring any gain or benefit on any front including in terms of politics. Rather it will be counter productive and will not generate any sympathy in favour of any sovereign power.
In the context of Parliament case reported as J.T. 2005(7) SC 1, the convicted has filed a curative petition and also clemency petition which any such person has a right to file. As of the article’s writing, 23 clemency petitions involving 44 convicts were pending before His Excellency the President of India.
So far as the time limit is concerned I believe “reasonableness is the limitation” and again it could be an issue of conscious if not justiciable. If the clemency petition is considered in the context of Parliament Attack case then it would be an exceptional case requiring immediate attention and even to be handled on priority basis considering its gravity.
Indian Muslim citizens must also come forward and visibly and positively protest in their own Nation’s interest and that would convey positive signals to the other citizens of India.
By keeping convicted terrorists in jail would always be a source of threat as we have seen in the Kandahar Hijack case. In our constitutional scheme it is not a division of power in the sense that Legislature, Judiciary and Executive are absolutely independent in their respective areas; but it is a “checks and balances” scheme.
Therefore, no constitutional organ can claim itself to be absolutely independent having insulated shell and claim that the other organ is transgressing into the power of the others. Ultimately good of the citizen and Nation is the aim, purpose and ultimate for any constitutional authority and ultimately it is the public opinion which will matter in this regard.
The fourth emerging power in this context is the “Power of the Press” because of its considerable influence over public. In fact, the press has been the voice of the people keeping the Government and the Opposition in checks.
No doubt, even in national interest sometime terrorist if they are not the citizens of the Country in which they have attacked may be extradited after considering the entire material but in the Parliament Case, the convict happens to be the citizen of India and would be considered as Hero by those who used him in case death sentence is commuted.
In the Parliament Attack case, 9 persons, including 8 Security Persons and one Gardner died and 16 persons received bullet injuries and 5 Terrorists were killed and one has been awarded death sentence. Would it be proper to keep such an issue alive or bury the issue by carrying out execution? The threat reason as propounded by the Former Chief Minister of Jammu and Kashmir and others are senseless as we can see what happened when 5 Terrorists were killed by Security Forces.
Those Security Personnel who killed Terrorists have not been given such threats. In fact, the threats appear to have been issued to neutralize the deterrent effect caused by judicial conviction and that may be caused by execution of sentence.
The offences committed by the Terrorists in the Parliament Attack Case are separately classed in Chapter VI of the Indian Penal Code, the title of which is “Of offences against the state”. Therefore, such offences are unpardonable.
Historically Desh Droh are unpardonable crimes and punishable with alternative punishment of blinding, amputation of limbs etc., but those kind of punishment are not legally permissible in our Democratic Country.
At this juncture it is important to refer the decision of the Supreme Court, Mithu v. State of Punjab, AIR 1983 SC 473, which was a case in which Section 303 of IPC was declared unconstitutional. Section 303 concerned an accused who commits murder while being under the sentence of imprisonment for life. The Supreme Court declared Section 303 unconstitutional because it excluded judicial discretion and there are unrelated provisions in IPC which also provide life imprisonment.
Today’s time is different. The War is thrust upon the Nation in a different form; public has direct and live access to events happening in the Corridor of Power through media, therefore, nothing can be hidden from a general public which has become more wiser.