Before we tender clemency

Mercy is a noble aim, but it must be kept in strict line with the rule of law

Every civilised country in its Constitution or in its laws provides for a power to grant pardon or remission of sentence. Articles 72 and 161 of our Constitution confer this power on the president and the governor, respectively. It is settled law that this power is to be exercised in accordance with ministerial advice and not by exercise of the president8217;s or the governor8217;s individual discretion. The rationale of the pardon power is that, 8220;A pardon in our days is not a private act of grace from an individual happening to possess power8230; When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.8221; The test is public welfare.

The classic exposition of the law relating to pardon is 8220;that executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments8221;.

It must be realised that exercise of the power of pardon does not obliterate or set aside the judgment of the court. The act of pardon under the Constitution operates in a wholly different plane from that in which the court acts. It is the exercise of a constitutional power, whose nature is entirely different from the judicial power. The judicial power and the executive power over sentences are distinct. 8220;To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.8221;

The critical question is, what are the legitimate and relevant considerations for exercise of the pardon power in our country where, regrettably, the death penalty is on the statute book and challenges to its unconstitutionality have been rejected by the Supreme Court? The considerations for grant of pardon are various. Some of the illustrative ones are a interest of society and the convict; b the effect on the family members of the victim and their sense of indignation and injustice; c the period of imprisonment undergone and the remaining period; d seriousness of the offence; e there is a 8220;scintilla of doubt8221; about the convict8217;s guilt; f the health of the prisoner, especially any serious illness from which he may be suffering; g post-conviction conduct, character and reputation; and h remorse and atonement, and so on.

Our Supreme Court has categorically ruled that the power of pardon cannot be exercised for political considerations. It has further held that considerations of religion, caste, colour or political loyalty are totally irrelevant and are inherently fraught with discrimination.

Exercise of power of pardon is not immune from judicial scrutiny. Courts in exercise of judicial review have interfered with orders of pardon or remission when it is established that the order was passed without application of mind or the order is mala fide or has been based on wholly irrelevant considerations having no nexus with the objective underlying the power of pardon, or if the order is arbitrary. In the case of Swaran Singh, Doodh Nath was found guilty of murdering one Joginder Singh and was convicted to imprisonment for life. His appeals to the high court and to the Supreme Court were unsuccessful. However, within a period of less than this years the governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. The Supreme Court quashed the governor8217;s order inter alia on the ground that the impugned order 8220;fringes on arbitrariness8221;.

The vexed question is whether power of pardon can be exercised to appease popular sentiment or public opinion and thereby yielding to it. According to one Law Commission Report it has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law.

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This view has serious implications. Public opinion and especially its local expression are fleeting and fluctuating and can be manipulated and aroused by injecting into them strong doses of emotional and political elements. Furthermore there can be equally strong contrary public opinion. Grant of pardon solely on the ground that a certain region of India will go up in flames if the convict is executed smacks of pressure and is almost tantamount to blackmail. If this argument is accepted, then persons found guilty after a fair trial of ghastly murders in Gujarat or elsewhere in the country should not be executed. Will the voices asking for pardon for Mohammad Afzal also plead passionately for grant of pardon to the perpetrators of the Gujarat carnage? Or will there be double standards in the matter? Again on this argument, Dara Singh, who has been convicted of the brutal murder of Reverend Staines and his two sons, should be spared because according to some he is 8220;the symbol of our nationhood8221; and his execution will lead to turmoil and make him a martyr. Acceptance of such pleas would send wrong signals.

If there is any scintilla of doubt about the convict8217;s guilt or if the death penalty appears too harsh 8212; to many it does not, nor did it to the Supreme Court 8212; then the proper course could be to commute it to full life imprisonment. Clemency must be exercised on definite principles. Justice and the Rule of Law must not be sacrificed at the altar of sheer expediency and speculative political considerations and likely fallout.

A full pardon having regard to the enormity of the crime and the killing of security personnel who were patriotically performing their duty would set a pernicious precedent, outrage the sense of injustice in the minds of the victims and open a veritable Pandora8217;s box. Moreover the Rule of Law, which is a basic feature of our Constitution, would be the foremost casualty and will go up in flames which must be avoided at all costs.

The writer is a former attorney general for India