Author: Abraham Thomas
Publication: The Pioneer
Date: October 12, 2006
SC verdict on pardon to impact Afzal case
In a landmark verdict bound to change the
rules governing grant of clemency to convicts, the Supreme Court on Wednesday
held that the President or the Governor should not go by the pleas of the
convict alone but also by its impact on the family of the victims and society.
The court also held that such pardons, if granted on extraneous considerations,
would be subject to judicial review.
The court's judgment is bound to have a bearing
on the mercy plea filed on behalf of Parliament attack case accused Mohammad
Afzal. His family had sought clemency and the plea is before the President.
A sessions' court had fixed October 20 for Afzal's hanging.
Legal experts felt that the court's judgment
will compel the Government to hesitate before rushing into any clemency for
Afzal. With the court stressing that the "impact of the pardon on family
of the victims and society" should not be ignored, the UPA Government
may find its hands tied in commuting Afzal's death sentence into life. The
family of the victims in the Parliament attack case have already submitted
their memorandum to President APJ Abdul Kalam against any clemency being shown
to Afzal.
Delivering its decision on a petition that
challenged grant of clemency to a former Andhra Pradesh Congress MLA convicted
for murder charges, the Bench of Justices Arijit Pasayat and SH Kapadia quashed
the Governor's decision commuting 10 years' imprisonment to five years.
"The power of executive clemency is not
only for the benefit of the convict," the Bench said, adding, "but
while exercising such a power the President or the Governor, as the case may
be, has to keep in mind the effect of his decision on the family of the victims,
the society as a whole and the precedent it sets for the future."
Though clemency rests as a "prerogative
power" exclusively vested with the executive, the court clarified that
far from the traditional understanding of pardon being an "act of grace,"
the grant of pardon envisaged under the Constitution is an act of discretion
subject to certain standards. This discretion therefore has to be exercised
on public consideration alone, it added.
Accepting that "power of pardon by the
President or Governor is not immune from judicial review," the Bench
added, "the Rule of Law should be the overarching constitutional justification
for judicial review."
The Bench said that the pardon, in effect
eliminates the effect of conviction without addressing the defendants' guilt
or innocence. In doing so, "considerations of religion, caste, or political
loyalty are irrelevant and fraught with discrimination." It went on to
suggest that "rule of law is the basis for evaluation of all decisions"
while illustrating the supreme quality of rule of law being "fairness
and legal certainty." Also where the pardon is vitiated or obtained on
false grounds, judicial review is permitted, the Bench added.
In arriving at this conclusion, the question
before the court pertained to defining the scope and extent of the power to
grant pardon vested with the President under Article 72 and under with the
Governor under Article 161 of the Constitution respectively.
Refusing to draw a common standard, the Bench
held, "the exercise of power depends upon the facts and circumstances
of each case and the necessity or justification for exercise of power has
to be judged from case to case."
The court took assistance from noted constitutional
expert and senior advocate Soli J Sorabjee who advised the court that guidelines
need to be framed in designing the scope of the "discretionary power"
to grant pardon. The court even accepted his suggestion that the decision
to grant pardon must be supported with reasons, and in case it is subsequently
found that the pardon has been obtained on basis of "manifest mistake"
or "patent misinterpretation or fraud", the same could be withdrawn
by the Government.
The decision as it comes now could reverse
the fate of the convict Gowru Venkata Reddy, who was released from jail in
2005 by Governor Sushil Kumar Shinde as period already undergone. Charged
with the murder of Telugu Desam Party activists in the State, the Supreme
Court while considering his appeal on an earlier occasion had converted the
offence of murder to culpable homicide not amounting to murder thus reducing
his sentence to 10 years.
