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.

Pranab’s tainted Resume!

Let’s not get distracted with the competitive ambitions of PM aspirants. Let’s not the pure ego of Lee and Hesh rag us much. Let’s not attach too much importance to what Abu Jundal is singing inside the custody. Let’s focus on the Big News- Mr. Pranab Mukherjee’s ride from North Block to Raisina Hill. Am neither interested in entering into a discussion with Mr. Punj as to Should a failed FM be made the President? nor is willing support the candidature of Mr. Jethmalani, whose grievance is- his friend Pranab concealed the names given by Germans and French. Simply, my problem here is: Am a little worried as Mr. Mukerjee’s questionable integrity might sully the ‘sanctity’ of the post, which the Hon’ble Supreme Court in P.J. Thomas case attached too much import to.

Mr. Pranab Mukherjee
Photo Courtesy: Ennapadam Panchajanya

The importance of this write up is- its Urgency, both in intervention and in fact finding. My close buddy might argue clamorously, but Art 361 will not heed to her Understanding of law and will keep averring “Nothing Doing”. Hence all dust needs to be cleared of and all dirt needs to be absolved before his much Awaited Walk. 
Following are some of the charges against him:

Navy War Room Leak 

Mr. Mukherjee is no relative of Wing Commander S L Surve nor is he the custodian of the 'Directorate of Naval Operation' but his interview to CNN-IBN’s Karan Thapar in 2006 dragged him into the controversy. Handing over the investigation to the CBI on Feb 18, 2006 did lessened public angst but didn’t immune the Defence Minister from further questions. 

·        Why no criminal investigation was carried out against Abhishek Verma, Ravi Shankaran and Kulbhushan Prashar?

·         Why the three commanders- Vijendra Rana, Vinod Kumar Jha and Captain Kashyap Kumar, who were sacked under the “Pleasure Doctrine”, were not Court Martialed?

·         The Outlook magazine pointed out that the delayed response by the Defence Ministry gave Shankaran enough time and opportunity to escape. Therefore question arises why Pranab wanted to shield those who collectively and individually compromised the security of the country by smuggling out “classified naval information”?

·        When CBI in its report to the court clearly states that the information was relating to “National Security” and includes ‘Standard Operating Procedure of PECHORA’ and ‘Highly Sensitive information as to Directorate of Naval Operation’, why Mr. Mukherjee didn’t want an investigation and avoided it saying they were of “commercial” nature? (See para 24 and 26 of the CBI Report).

Scorpene Deal

Don’t give a goggle-eyed expression now. Yes! It is Scorpene- One of India’s largest scandal. On October 2005, Mr. Mukherjee signed an arm purchase contract with Thales, a French company. The allegation is- 4% commission is received by a few middlemen on behalf of the decision makers. To make it easy, the kickbacks are over Rs 500 cr in INR. On Feb 22, 2006, Mr. Mukherjee told the Parliament that the deal had no middlemen. But the email exchanged between Abhishek Verma and Jean Paul Perrier on July 13, 2005 proves otherwise. Pranab defended saying it was 'forge', however, the telephonic conversation with Ravi Shankaran clearly corroborates the allegation.      

Rice Export Scam

Again a Rs. 2,500 cr scam! Compromising India’s food security, non basmati rice was exported to Ghana and other 20 countries at cheaper rate on the grounds of Humanity. But this gesture turned out to be a dubious one. The question here is: Why Amira Food (India) Ltd.? Why wasn’t it a government-to-government deal? Why didn’t govt use the Food Corporation of India (FCI) and Shipping Corporation of India (SCI)? Exporters were facilitated to bypass the ban and capitalize on the rising international market prices (i.e. $670/ton). Mr. John Evans Atta’s government launched an inquiry into this and wrote a ‘Letter of Request for Assistance’ in relation to a criminal investigation conducted by the Attorney-General Deptt, the Bureau of National Investigation (BNI) and the Criminal Investigations Deptt. (CID) of the Ghana Police Service. A seven page letter is received by India from the Attorney General’s Deptt (dated August 13, 2009), requesting under the ‘Harare Scheme’ to investigate into the role of then External Affairs Minister of India along with others.{See: Page 4 of the Letter. Reference No.-AGD/PD*2/5A/01/09 (the exact number becomes difficult to identify as they were hand written)}. But unfortunately no concrete step was taken and an eye wash was done in the form of an internal enquiry by the Commerce Ministry. India’s Commercial Humanity. Huh?

Apart from this, there are other allegations also. For instance, Pranab pressurized SEBI to go easy on Reliance, Sahara, Bank of Rajasthan and MCX-SX. The letter of Dr. K.M.Abraham, to the PMO narrates the instances of Calculated Assault on the regulatory framework. (See: para 7, 11, 14 and 15 of the letter dated June 1, 2011. Ref. No.-  SEBI/KMA/2011/17495) However, we will not discuss this here, as the SEBI Chairman Mr. U.K.Sinha has denied the allegations. But it needs to be investigated. Secondly, the former journalist Anuj Dhar claims that Mr. Mukherjee was behind the ‘cover up’ on Netaji’s air crash and goes to the extent of saying that he is “India’s foremost proponent of the Bose died in Taiwan” theory. Nonetheless, we will wait for his book- “India’s Biggest Cover-Up” to come up.

I have no objection when a tainted Man continues his law practice but certainly I don’t want a Man having colored past to be my President. Therefore we demand an independent investigation into all these allegations against Mr. Mukherjee, before he can claim his Presidential Immunity. Let’s not belittle our Highest Office! Let’s not allow a Man with tainted resume! Let’s ensure our Excellency is not excellent in Corruption!

Mamata: A case of Marginalization!

When I address my Best friend as the President of India, I see for her- a Big black car, the Silver Trumpet and Edwin Lutyens’ architectural adobe, and not certainly the Politics of Convenience or Opportunistic Smartness… Unfortunately, the Race-2012 turned down to be that- a game where what matters, the most, is: whose move is more Measured and more Calculated. If tomorrow, Independent India sits down to check it’s achieve, it will by all odds spend a few hours on the upshots of 2012 Presidential Election. The Rush from Certainty to Incertitude and again Redo of all mess makes it Special, and not just the magical number - 13, I believe.

If not two months old attempt of Sushma Swaraj, it was V S Sampath’s 12^th June EC News Conference that blew the whistle and Mamata Di was the first one who heard it. When other regional leaders were occupied with their domestic affairs, Mamata appeared to be a Game-Changer in the Capital. She got media attention more than Sunny Leone and her each move became BREAKING NEWS. A quick meeting with the UPA Chairperson and the Declaration of names revealed all secrets. Congress may slam her for Lack of Decorum and Discourtesy but that’s how Mamata Banerjee is. Thanks Di! She ensured every single TMC leaders get an opportunity, at least once in their political career, to climb up to the studios of leading news channels… Disaster! Cataclysmic English and no sense of what’s going on... Anyway, Strategy was crediting her attendance in Akhilesh’s swear-in. All was Well before getting Ill. The M+M Combo (Mulayam and Mamata) was successful in threatening Congress Men and outstandingly came up with an over-the-top proposal i.e. the sitting Prime Minister was proposed to spend his time in the “Retire Bhawan”. Ooopsss.. Rastrapati Bhawan! Amazing! I call it. Nowhere in the history of the world, perhaps!!

Choice was not- ‘what they want’ but off course ‘what they want not’. Any Bengali but not Pranab Da and any Muslim but not Ansari Sahab- was the litmus test. The permutations yielded three names but 7RCR out rightly rejected all of them and Samajwadi Party, forgetting all ethics, backed it. Mamata got her reality checked. She came, She dictated, She periled but she returned Unconquered. Mulayam ditched her, Congress snubbed her and Delhi rebuffed her. Pranab’s victory became the Foregone Conclusion.




Also Visit:
http://www.scribd.com/doc/13742999/Is-President-a-mere-head-in-India