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.

Criminal Justice and PC Act

*The author is encouraged by Ms. Ishani Das to write on this topic.

If Humans were Gods and angels, no law would perhaps be necessary. But as sociologists like Prins and Durkhain put it “Criminality…is not transcendent but immanent”. Therefore to curtail, curb and control this inherent and inevitable criminality and to prevent devolution of society into a State of lawlessness, a system is placed in every States i.e. the Criminal Justice System to address the social evils. In India, the Indian Penal Code and Code of Criminal Procedure being cardinal to the justice administration provides for systematic arrangements and functioning of the police, the prosecution, the courts, the probation and other aspects.

Corruption is a pernicious plague, which undermines the rule of law and leads to human rights violations, distort markets, and erode living standards. Being a profound reason of economic underperformance, it injects inequality and injustice into the system and discourages foreign investments. At the international level, India is signatory to the UN Convention against Corruption. It has also signed the Extradition and Mutual Legal Assistance Treaties with a number of countries. At the domestic level, the IPC deals with the crime of bribery and corruption under chapter IX i.e. Offences by or relating to public servants.

A special law is enacted when a particular crime cannot be handled by a regular law and obviously, Corruption is crime serious enough to merit a special law. Hence, the Prevention of Corruption Act. The PC Act, 1947 is the first legislation to deal specifically with the problem of corruption in public life. Various amendments were made with the changing times and later on, all these laws were replaced by a more comprehensive legislation i.e. The PC Act, 1988. The Parliament deleted Section 161 to 165A from the IPC and incorporated those provisions under Section 7 to 16 of the PC Act.

In addition, the judiciary, through its judgments has substantiated and contributed to the Administrative Law jurisprudence in general and fortification of Criminal Justice System in particular, thus making Judge made law as one of the existing realities of Indian social life.

THE PREVENTION OF CORRUPTION ACT, 1988

The PC Act, 1988 was enacted to consolidate different anti-corruption legislations and to make them more effective. Apart from the offences punishable under the IPC, the PC Act has enumerated a number of offences, which can be broadly categorized as:

·         Bribery of Public Servants

·         Embezzlement and Misappropriation of Property by Public Servants

·         Abuse of Functions by Public Servants

·         Illicit Enrichment of Public Servants etc.

I will only raise some specific features of PC Act, which are pertinent to mention as they have a wide range of ramifications and which showcases the political commitment towards corruption free society.

Special Courts

Section 4(1) of the PC Act makes it mandatory that the offences will be tried by the Special Judges only. This helps in effective and efficient administration of justice. However, the Special Judge being a Court of Session (Section 5(3)), the two layer protection and right to appeal (i.e. in the lower courts) is denied to the accused. Similarly, Section 4(3) confers jurisdiction on the special judge to try offence, other than those specified in section 3 and triable by magistrate under the CrPC*.

Trial on day-to-day basis

Notwithstanding anything contained in the CrPC, as per Section 4(4) a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.

Freezing of Ill-gotten Properties during Trial

The Criminal Law (Amendment) Ordinance, 1944 deals with freezing, seizure and confiscation of properties, which are proceeds of crime. Section 5(6) empowers the Special Judge to exercise all the powers and functions under the said law during the trial.

Power of Pardon

Under Section 5(2), the special Judge may, with a view to obtaining the evidence of any person tender a pardon on condition of his making a full and true disclosure of the whole circumstances. Such pardon shall be deemed to have been tendered under section 307 of CrPC.

Other important features include the Prohibition of the grant of stay on trial, Denial of appeal in cases tried summarily (Section 6(2)), Enhancement of punishment etc. Despite this strong law, the Indian criminal justice system still faces many challenges. The problem of corruption in the private sector is increasing with the expansion of the private sector but there is no law to tackle those corruptions. Secondly, the condition of Previous Sanction results in delay. Notwithstanding anything provided under Section 197 of the CrPC, Section 19 of the PC Act requires prior permission of the authority before launching prosecution against him. This often delays the launching of prosecution. The sanctioning authority taking 16 months to grant sanction for Mr. A. Raja, is the glaring example of this. However, the extension of the Vineet Narain judgment beyond bureaucracy by the Hon’ble Supreme Court in its landmark Order on 31^st January 2012, once again endorsed that A Bad case makes a Good law. 

The positive development of the anti-graft laws and the enforcement of PC Act have warned the corrupt that betrayal of the public trust will no longer be tolerated, thus strengthening the Indian Criminal Justice System. Though a richer scholarship than mine is requisite to address the topic intricately, however, in my limited understanding -the trial of 2G, CWG and the recent arrest of Babu Singh Kushwaha is the manifestation of our own efficacious Criminal Justice System. Whilst this positive move is viewed by the critics as not so positive, yet we may try to see things as objectively as we please. At the end, as Benjamin Cardozo put it, we can never see things with any eyes except our own.

Thank you!

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* For better understanding see: Essar Teleholdings Ltd. and Loop Telecom Ltd. v. The Registrar General, Delhi High Court & Ors. (Against the Administrative Order issued by the Delhi High Court on 15.03.2011 and the Notification dated 28.03.2011 issued by the Govt. of NCT of Delhi. Pending before the Hon’ble Supreme Court)

No Law* to Regulatory Regime: The Press in Transition

*Extracted from: “Congress shall make no law… abridging the freedom of speech, or of the press…”

Freedom of expression, whether on the traditional press and broadcasting media, or through the new electronic media, remains of fundamental importance to the workings of the liberal democracies; indeed, it is impossible to see how a democracy could exist without a free, pluralist media for the dissemination of information and the discussion of political and social affairs.[1] But the free press does not entail the complete absence of law and regulations. Laws are needed to balance the competing interests of the media and the public.

To a large extent, the media exercises self-restraint as there exists questions of legitimate public concern. The silence of US media about John F. Kennedy’s sexual affairs, both while he was a candidate for the Presidency and later while he occupied that office, and of the English newspaper’s silence about Churchill’s health during the Second World War is often quoted when we debate about the maturity of media. But today, the situation is very different. Revelations about the private life of celebrities and public figure, and the increasing misuse of freedom has raised question as to how much free is, free media? The citizens in many advanced liberal democracies guaranteeing Free Press has started questioning: Are the newspapers and the channels immune? Can media activism endanger reputation, privacy, or even safety of individuals? To what extent is this freedom unfettered as to endanger the dignity of those individual, whom they inform and entertain? Or putting it straight- Do freedom of press necessarily implies freedom of newspapers and electronic channels?

Freedom of Press: US experiences

“Congress shall make no law… abridging the freedom of speech, or of the press…” These sparse words of the First Amendment of the United States Constitution have created a huge literature, a complicated jurisprudence, and a plethora of case laws which marked its get-go in Schenck v. United States[2], where the U.S. Supreme Court went on to decide the constitutional validity of legislation on the basis of the Amendment. To gather the legislative intention behind the amendment, reference is seldom made to the pages of history as there is a paucity of proof but it is undisputed that the Founders affirmed to the Blackstonian position i.e. against the prior censorship of the press.[3] In Konigsberg v. State Bar of California[4], Justice Hugo Black saw the Founder’s intention embedded in the clause and goes on to declared that these words are “the First Amendment’s unequivocal command”, which “shows…all the balancing that was to be done in this field”, insisting “No law” means no law.

In the context of non-constitutional social interest viz. privacy, reputation, repose or public morality, often the debate of ‘Balancing’ vis-à-vis ‘Absolutism’ is marked. The absolutists’ claim being ‘No law’ signifies ‘impermissibility’, never allowed general theorizing. However, the judicial responses in its ad-hoc balancing often given these social interests prevailing effect over the countervailing claims to freedom of speech. The non-acceptability of Black’s view is the evidence of it and the reason being it invalidates many widely accepted restrictions on speech and restrictions that reflect the complexity of the relationship between individual liberty and the interests of the community.

The reason of overweighing a principle while interpreting is never unguided. Similarly, the Supreme Court, while interpreting the First Amendment, had looked forward to the broad purposes of its language in the light of various theories, arguments advanced in justification of the speech and press clause, and the political history and intellectual tradition. These justifications include self-government, individual self-fulfillment, and the attainment of truth. In Times Inc., v. Hill[5], discussing self-government argument observes that a representative democracy is impossible without the active participation of citizenry. Scholars like Blasi[6] believe that the function of free speech and press is to arrest the inherent tendency of government officials to abuse the power while others like Bollinger[7] take it as a safety valve for the release of energy that might be directed towards subversion or violence. The argument from self-realization regards speech as cardinal to human development in Whitney v. California[8]. Lastly as observed by the Court in Red Lion case[9], truth is most likely to emerge only when confronted by its refutation in an arena of free and open debate.

Unlike many of the Constitutions of other democracies, the U.S. Constitution fails to specify what the limits of the freedom, hence leaving the Supreme Court to its own devices when confronted with constitutional challenges to rules or regulations that infringe upon the freedom of speech or press.[10]

Transition: Protectionist Approach to Free Speech

In the case of Brandenburg v. Ohio[11], Brandenburg, a Ku Klux Klan leader was convicted under the Ohio’s criminal syndicalism statute for remarks that he had been taped making at a Klan rally where he had used racially derogatory terms. Ohio’s intermediate court of appeals and the state supreme court dismissed Brandenburg’s appeal. Justice Black and Justice Douglas claiming that the court should abandon the “clear and present danger test” decided that Ohio’s criminal syndicalism law violates freedom of speech as guaranteed by the First and Fourteenth Amendments.

However the broad protection accorded to the political speech in Brandenburg case was foreshadowed by the historic decision in New York Times Co. v. Sullivan[12]. Prior to Sullivan, public officials could sue newspapers and other critics under state libel laws for defamatory utterances and false statements of fact directed towards their official conduct. In overturning such protection, the Court announced that in the future the public officials could recover damages for a falsehood relating to their official conduct only if they could show that the utterances were made “with reckless disregard of the truth”. Thus J. Brennan gave priority to free speech with a very restrictive exception ranking speech superior to the social values of personal honour and reputation. The court pointed out that “erroneous statement is inevitable in free debate” and freedom of expression needs “breathing space” to survive and any other rule would lead to “self-censorship of the press”, deter would-be critics of official conduct, and dampen the vigor of public debate. The court while delivering this judgment cited J.S.Mill approving that even false statements contribute to public debate because then truth emerges vigorously and clearly “by its collision with truth”.[13] Sullivan case invited criticism for its elevation of speech over the countervailing values. However the criticism intensified when the court in Curtis Publishing Co. v. Butts and Associated Press v. Walker[14], Time, Inc. v. Hill[15], and Time, Inc. v. Firestone[16] extended the Sullivan privilege to cover public figures such as football coaches, celebrities and others. J. Brennan was not unmindful of the important social values[17] still in Rosenbloom v. Metromedia[18], he argued that free speech “must embrace all issues about which information is needed… to enable the members of society to cope with the exigencies of their period”.   

Reversal to Dignitarian Argument

In Gertz v. Robert Wetch, Inc.[19], the court limited a newspaper’s constitutional privilege against liability for a false statement of fact. The court shifted its emphasis to J. Stewart approach i.e. the dignitarian argument where the injury is inflicted on a private person caught up in a matter of public interest. J. Powell went on to say “there is no constitutional value in false statement or fact” as “neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and wide-open’ debate on public issues”[20], though J. Brennan dissented.

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[1] Barendt, Eric., et al(editors), Series Preface, Freedom of the Press, Library of Essays in Media Law, Ashgate Publishing Limited, England, 2009.

[2] 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919).

[3] Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History, Cambridge, Mass., Belknap Press of Harvard University Press, 1960, p. 13-15 and 214-48.

[4] 366 U.S. 36, 61 (1961)

[5] 385 U.S. 374 (1967).

[6] Blasi, Vincent, The Checking Value in First Amendment Theory, American Bar Foundation Research Journal, 1977, p. 538.

[7] Bollinger, L.C., The Tolerant Society, Oxford University Press, New York, 1986

[8] 274 U.S. 357 (1927).

[9] Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969).

[10] Kommers, Donald P., American Constitutional Law, 3^rd edn., Rowman & Littlefield Publishers, Inc., USA, 2010, p. 739

[11] 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969)

[12] 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686 (1964)

[13] Mill, J.S., “On Liberty” in John Garvey, The First Amendment: A Reader, St. Paul, Minn.: West Publishing Co., 1992, p. 59.

[14] 388 U.S. 130 (1967)

[15] 385 U.S. 374 (1967)

[16] 424 U.S. 448 (1976)

[17] Rosenblatt v Baer, 383 U.S. 75, 86 (1965)

[18] 403 U.S. 29, 41 (1971)

[19] 418 U.S. 323 (1974)

[20] Id. 340

Communal Violence Bill, 2011

PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS

More PowerPoint presentations from satya ranjan swain

..gallows await them

May 9 and May 13, 2011 and I was waiting if there comes another day in this month... But it didn’t.

The two-judge Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Mishra reiterated in the both dates the common but unusual statement, “…gallows await them”.

Will not say today that they were threatening but yes! they were not in agreement with my teacher, who gives the example of pick pocketing to make us understand: Deterrence is not an effective principle in criminal law jurisprudence. When the Supreme Court has shown a declining tendency to impose death sentence, averring it should be granted in the rarest of rare case, this Bench's threat to impose the sentence is not only diverging but perplexing.

“The encounter philosophy is a criminal philosophy… Trigger-happy policemen who think they can kill people in the name of encounter and get away with it should know that the gallows await them.”

May 13, 2011

“All persons who are planning to perpetrate honour killings should know that the gallows await them.”

May 09, 2011

We will not deal today the matters of ‘fake encounter’ and go straight to ‘honour killing’. Here is a fact! There was the murder of Seema, a girl in 2006, who had left her husband and was living with an uncle. Her father, Bhagwan Das was annoyed with his daughter for having, in his opinion, an “incestuous relationship”. So, he strangulated her with an electric wire. The trial court convicted him, which was further upheld by the High Court. And now the Supreme Court upheld the conviction.

The Bench while upholding the life sentence of a man for killing his daughter as she had “dishonoured” the family held that honour killings came within the rarest of rare cases deserving the death penalty. The court termed it as barbaric, feudal practices which are a slur on our nation and death penalty is necessary as a deterrent for such outrageous, uncivilised behaviour.

Photo courtesy: www.honourkilling.in

It referred to Lata Singh vs State of UP and Anr and quoted that there is nothing honourable in honour killing or other atrocities and “honour killings” were nothing but “barbaric and brutal murders by bigoted persons with feudal minds”. The Bench also busted on the khap panchayats (caste councils) for encouraging honour killings or other atrocities in an institutionalised way.

The court didn’t pass a general comment but casted duties on the administrative officers. It was ordered that if any such incidents(honour killing) happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs [senior superintendents of police/superintendents of police] of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them.

Photo courtesy: newsleaks.in

The court tried hard to check the crime by making offices liable and deter people by repeating the word gallow. But India remained India and the false honour remained sacrosanct as before. What we are today impressing upon is the deterrent principle doesn’t work in reality. Despite the pronouncements of the Supreme Court, honour crimes didn’t end. Today, IBN Live reports the killing of Sharda Prasad Tiwari, and his wife Shobha Tiwari, in their Harsh Vihar residence in east Delhi by Sonu, whose sister was eloped with the elder son of the murdered couple. Few days back on May 14 there were news reports of two mothers in Baghpat district, western Uttar Pradesh, strangling their daughters who had dared to elope and marry men belonging to a different religion.

More than 1,000 young people in India have been done to death every year owing to 'Honour Killings'.

Yes! We may demand with the All India Democratic Women's Association (AIDWA) for a separate legislation to deal with, punish and prevent these crimes or the court may pass deterrent orders but the society will remain as it is, unless there is a change in mind set, change in attitude, change in behavior and change in outlook.

Violence is not our culture… Murder is not our custom… and let us understand it.

a letter 2 the CJI

Bhubaneswar
10^th September, 08

Respected the Chief Justice of India,

I am Satya Ranjan Swain, a student of 3^rd semester of B.A.LL.B (Hons.), KIIT Law School, Orissa. Sir, I was very much surprised when I got the news that the Chief Justice of India, in his August 4 letter to Prime Minister Manmohan Singh, has recommended impeachment of Justice Soumitra Sen of Calcutta High Court, who was found guilty of "misconduct" in an in-house inquiry. Now the Government is also planning to impeach him in the Parliament.

According to the Article 124 (4) of the Constitution, a Judge of a High Court can be impeached on the ground of proved misbehaviour or incapacity. But Sir, as a poor student of constitutional law, I think this impeachment of the judge is not for the misconduct of a judge. This misconduct had happened when Justice Sen was an advocate. So, he should not be impeached. I agree that if someone is guilty, he should be punished. But, in this case, “impeachment” is not the way. Simply, he can be prosecuted.

I have no ill intention in writing this. This is only my opinion. As a responsible citizen and an interested student, to know law in this point, I feel writing this.

Waiting for your valuable answer

Thanking you!

Yours faithfully,

Satya Ranjan Swain

KIIT Law School,

KIIT University, Bhubaneswar.

This letter is checked by Prof. T. Devidas, Adjunct Professor of NLSIU