Pardon me, His Excellency! You can’t pardon

Sanjay Dutt was never in news for his professional career so much, as he is for his recent conviction. Upholding the TADA court verdict, the Supreme Court sentenced him to five years imprisonment in connection with his role in the 1993 serial bomb blasts, which shook India’s conscience and India's financial capital on March 12, 1993. Death of 257 people, with more than 700 getting injured flung Mumbai into chaos. In the mean time, three AK-56 rifles, cartridges, 25 hand grenades and a 9-mm semi-automatic pistol finding their way in Dutt's house threw him behind the bars.

Dutt had been released on bail in November 2007. Recently he pleaded before the Hon’ble Supreme Court to let him off on probation on grounds of his past good conduct, but his petition was rejected. The bench of Justices P Sathasivam and B S Chauhan said, “The circumstances and nature of the offence are so serious... they don’t warrant the benefit of the provisions of the Probation of Offenders Act”. While upholding the death sentence of Y A R Memon and the life sentences of 16 (of the 18) convicts the bench further pruned its liberal stand towards Sanjay by saying- We could not have given a sentence less than what is prescribed in law*.
*Section 25 (1(A) of the Arms Act states that if a person has in his possession a prohibited weapon without a licence, he shall be awarded punishment of not less than 5 years imprisonment and not more than 10 years

Fortuitously or regrettably, no verdict of the Highest Court is ever executed in silence. Politicians have to score points, colleagues have to show emotions and people like me have to write blogs… Anyway, Mrs. Jaya Bachchan, Member of Parliament, announced that she will meet Maharashtra Governor K. Sankaranarayanan to pardon Dutt. She subsequently got support from eminent scholars like Mr. Ram Jethmalani, Mr. Majid Memon; and politicians like Mr. Amar Singh and Mrs. Jaya Prada, who were never known to be on the bangs of any mercy controversy ever. Surprising pitched in Behen Ms. Mamata Banerjee showing solidarity to Sanju baba, and also joined in Congress leader Mr. Digvijaya Singh, who went on record to say- "Sanjay Dutt is not a criminal. He is not a terrorist. The atmosphere was bad in 1993 and he reacted to it like any child would."

So pardon him..! If my boss Mr. Ramesh Gupta wouldn’t have been Digvijaya’s lawyer, I would have asked him-Had a common man played this role would he have showed same leniency as he expressed for Dutt?

And interestingly the story didn’t end there. There were more tellers to tell it… Justice (retired) Markandey Katju wrote a letter to Sankarnarayanan, appealing to pardon Dutt. Pleading on humanitarian considerations, Katju J., said the power of pardon under Article 161 of the Constitution is different from judicial power. The Governor or the President can grant pardon or reduce the sentence of the court even if a minimum punishment is prescribed. Citing extenuating circumstances, he went on to compare this case with the Nanavati case and weighed it, in his great wisdom, to be a lesser crime than that of there. Though it is not unusual to see that a sympathetic ex-judges’ heart melting down for the cloud hovering over a convict’s head, however, the political divide between the Right and Mercy supporters was extraordinary.

However, I along with Mr. Mahesh Jethmalani, Sr. Advocate, are on very basic and fundamental point, which needs to be addressed first. In the chorus for pardon, we have failed to see whether the governor has the power to pardon at all! The queue in which Jaya Bachchan, Amar Singh, and others are standing, whether it leads to right person’s House! Whether Katju J.’s letter carries right address!

When this pardonwale mounted pressure, and media started hankering about Governor’s mercy, as a poor student of Constitutional law I asked myself- why not President? In which cases President pardons? In which cases Governor (as a follow up question)? Excitingly I opened up my bare act, putting aside my watsapp. But that little book told me something strange. How can eminent jurists like Kaju J. go wrong? So many scholars can’t be ignorant! But can’t distrust my reading of law also. At least Prof. Mustafa taught me this much. I can read and tell you what the law speaks, if can’t interpret it otherwise. Fortunately I have a friend who always supports me and listens to me…even if it is going against everyone. She gives me a chance to speak up! And this blog gives me a chance to write down!!

Anyway, coming to the topic straight, will reproduce the provisions of Constitution for those who don’t have one…
Article 161: The Governor of a State shall have the power to grant pardons…the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Therefore the power of the governor is not absolute. The bold letters in the above para is self explanatory and determines the scope of governor’s power. However the subsequent article i.e. Article 162 makes it further clear. It reads:
Article 162: “…the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.”

Therefore Schedule 7, List II i.e. the State List determines where the governor can pardon. But the present case in hand does not find in anywhere in the list except Public order. However arms, ammunitions, terrorism is not part of Public order, as the argument developed by the Union Government while formation of NIA. On the contrary, the most fitted one is entry 5 of List I (Union List) i.e. Arms, firearms, ammunition and explosives. Therefore it is not within the power of state government. And to put it straight, it may be anyone else but not the Governor who have the power to pardon.

Obviously, I don’t enjoy the power, neither does my elected representatives. So it was to be an executive. Anyway the cumulative reading of Article 72(1)(b) and 73(1)(a) gives us an answer. Therefore, in this case the president can pardon Dutt.

Therefore the only recourse available to Dutt is to plead before the President or to file a review petition. Secondly, I will most humbly urge Katju J to stand corrected and request him not to put undue pressure on Constitutional body (President or Governor) by asking for mercy when Dutt has decided to surrender before expiry of the Supreme Court deadlines. When it is nowhere near to the mandate given to him as a chairman of Press Council of India, Self adornment of this duty and claiming right as a citizen simplicitor, doesn’t justify.