From courts, with conviction

Judgment on mercy petitions will force the state to think through emotive issues

The judgments of the Supreme Court delivered on October 11 on the scope of the president8217;s, or the governor8217;s, power of pardon or remission should dispel much of the ill-informed debate surrounding the use of the power by the president in the case of Mohammed Afzal, who was convicted and sentenced to death for his participation in the attack on Parliament in December 2001. Much of the law stated by the Supreme Court is a reiteration of well-settled principles for exercise of the pardoning power by the president or governors. These principles can now be authoritatively stated in the light of the two judgments of the Supreme Court delivered by Justices Pasayat and Kapadia.

First, the popular conception that the pardoning power is an act of grace by the president or the governor is totally fallacious. A pardon is not a private act of grace. It is a part of our constitutional scheme and an integral part of the criminal justice system. To use the felicitous words of a famous US Supreme Court judge, 8220;When granted it is the determination of the ultimate authority that the public welfare would be better served by inflicting less punishment than what the judgment has fixed.8221; Mark the words 8220;public welfare8221;. They are really the key. Secondly, it is also a fallacious view that pardon or remission of the sentence interferes with the court8217;s decision. The legal effect of a pardon is wholly different from a judicial supersession of the sentence of the court. Thirdly, the president or the governor exercising the pardon power is entitled to go into the merits of the case notwithstanding that the case has been judicially concluded by the highest court. It is open to the president or the governor to scrutinise the evidence and come to a conclusion different from that recorded by the court in regard to the guilt or the sentence imposed on the accused. This was established in Kehar Singh8217;s case in 1989. Finally, it is necessary to note that the act of pardon or remission is not that of the president or the governor. He acts on the advice of government.

What are the considerations which must weigh with the president or the governor in exercising the power of pardon? It is difficult to formulate them or to lay down any guidelines for the exercise of this power because, as the court has stated in earlier cases, the exercise of this power by the president or the governor 8220;is based upon myriad factors which are difficult to formulate8221; and it would be futile to impose guidelines for the exercise of their discretion. For this reason the Supreme Court even in the latest case has declined to lay down specific guidelines though it was pressed to do that. Nor has the court stated that the president or governor is bound to state reasons in their orders for the exercise of their power. But if in a given case the exercise of power by the president or the governor is called into question in a court, it would be incumbent upon the government to state the relevant factors taken into consideration by them in the exercise of the power. The court has emphasised that the absence of any obligation to state reasons does not mean that there should not be legitimate or relevant reasons for passing the order.

One aspect which is now clear is that exercise of this power is not immune from judicial scrutiny. This has always been the law in India and must be so, as all power under our Constitution is limited and must be exercised for the purpose for which it is conferred on the authority. Even in England, where at one time it was believed that the pardoning power was a prerogative immune from correction, courts have held that the power is subject to the court8217;s review if it was not exercised in favour of a party entitled to pardon on proper considerations. However, the scope of the judicial scrutiny is limited. The court will not examine the order of the president or governor on its merits as if it were sitting in appeal over it.

The court has indicated what would not be the proper considerations for exercising this power. Thus, if the order has been passed due to considerations of religion, caste or political loyalty, it would be bad and the court would strike it down. This is undoubtedly so, but controversially in one of the latest judgments it has also been observed that the power should not be exercised on 8220;grounds of political expediency8221;. With respect, this limitation may not be correct unless it was meant that the power should not be exercised for considerations of political loyalty or favouritism as the court found in the instant case.

The court has rightly stressed that the basic criterion is that the power vested with president or governor is not for the benefit of the convict but in the interests of society. Therefore, in certain circumstances the acts of pardon or remission may have to be exercised on grounds of political expediency as well as in the larger interests of the nation. This will be a difficult and controversial decision but it is among the many which a president or governor acting on the advice of the government has of necessity to make.

In the ultimate analysis, the decision to pardon or remit the sentence in a sensitive case may require statesmanship, vision and courage of a high order transcending the immediate clamour of countervailing pressures on the president or government of the day.

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The recent judgments of the Supreme Court may help to clear some aspects of the debate surrounding the pending application for pardon or remission of Mohammed Afzal before the president.

The writer is a senior advocate and former solicitor general of India