Pardoning Power in Question


Author: Akash Mishra


For the last two weeks there has been much hue and cry over the conviction of Sanjay Dutt in the 1993 Blast case. Specially when the Chairman of Press Council of India and former Supreme Court Judge Markandey Katju wrote a letter addressing to the Governor of Maharashtra appealing him to pardon him in the same way when the Governor commuted death sentence in the Nanavati case. Well the verdict of the Supreme Court is at the altar and no one can deny this fact that Sanjay Dutt was found guilty of possessing an automatic weapon(AK-56) that too illegally and acquired it from dubious characters like Abu Salem for which he has been convicted under the Arms Act. The Supreme Court prescribed the minimum sentence of 5 years according to the Arms Act and he has already served 18 months and now he has to be incarcerated for another 3.5 years.

Now lets just keep this controversial letter aside and delve into the legal technicalities related to the conviction and pardoning power of the President and Governor.

constitution of India

Article 72 of the Constitution empowers the President to pardon the person convicted and sentenced by the Court of law. Similarly, Article 161 empowers the Governor for granting pardon but with certain restrictions. The pardoning power of the Governor is curtailed by the Article 162 of the Constitution according to which the Governor is not entitled to grant pardon on the subjects which are in the Union List in the seventh schedule of the Constitution and the Arms Act is in the Union List. These are the constitutional powers which have been conferred on the President/Governor in order to avoid any occurrence of injustice. The Law Commission in its 1967 Report on Capital Punishment said: ” There are many matters which may not have been considered by the Courts. The hands of the Court are tied down by the evidences placed before it. A sentence of death passed by a Court after consideration of all the materials placed before it may yet require reconsideration because of : (i) facts not placed before the court; (ii) facts placed before the Court but not in the proper manner; (iii) acts discovered and events developed after passing of the sentence or other special features”.

Precisely, Mr Dutt is not sentenced to death but these arguments are applicable to all the cases where an appeal has been made for granting pardon. Justice Katju has defended his stand that while pardoning  on humanitarian grounds are considered, which the legal procedure may not accept.

In Maru Ram vs. Union of India AIR 1980 SC 2147, the Constitutional Bench observed that considerations for the exercise of power under Articles 72/161 “may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.” In Kehar Singh vs. Union of India AIR 1989 SC 653 another Constitutional Bench having regard to the nature of the power of the President under Article 72, stated that the President under Article 72 could scrutinize the evidence on record of a criminal case and come to a different conclusion from that of the court. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it.

On these grounds Justice Katju pleaded for Sanjay’s pardon. We are not here to continue the same debate whether Mr. Katju is on the right side. We are trying to understand the legal framework and constitutional provisions.

There is one loophole which was rightly pointed out by the former Law Minister and Senior Advocate Shanti Bhushan in this verdict. Section 96 of the IPC states that : “Nothing is an offence which is done in the exercise of the right to defence.” Section 40 of the IPC provides that Chapter 4 of the code is applicable to not only offences under IPC but also to offences under other special laws like the Arms Act of 1949. Section 96 is in Chapter 4 of the IPC. Sanjay Dutt in his confession has accepted the possession of arms illegally for protection of his family as there were riots going on during that period. Sunil Dutt, his father, was also attacked who even sent a letter to the Ministry seeking protection dated 6.01.1993.

May be the period of incarceration would have been shorter as he has not been found guilty of his involvement in the blasts but the Supreme Court was handcuffed as it can not sentence lower than the minimum prescribed by the Arms Act which is 5 years. Mr. Katju has also sent letters to the President for both Sanjay Dutt as well as Zaibunnisa Qazi. But the pardon procedure could not start unless the mercy petition is filed by the convicted. Sanjay Dutt has negated to file any petition and decided to honour the Supreme Court judgement. Now its up to the President to decide on this matter. But we also know that according to Article 74, even the President is bound to the advice of the Council of Ministers even in the case of granting pardon i.e. he has no discretionary power under Article 72.

We have no authority to judge any case, as its the responsibility of the Judiciary. Whatever Mr. Katju did it was his personal decision on the basis of his conscience. But the most disheartening fact is that still our judiciary takes a duration of 20 years to arrive at a conclusion. If the victims have to wait for 20 years to get justice certainly it stigmatizes our Judicial system which needs a great deal of reformative measures.


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